27 June 2017 06:36 AM

Persons of the Legal Sector Back


Experts

 Experts are persons called upon to make an expertise which is considered as one of the stages of the investigation that aims at resorting to experts to give their advice on technical matters submitted to them or to examine and ascertain material facts which may be the object of a litigation in the future. The judge does not take such measures except when it is difficult for him, and even impossible to solve technical matters.

The Regulations of Experts are provided for in the law promulgated by Decree-law no 65 of 9 September 1983. Furthermore, Civil Procedure Code includes the provisions that govern expertise works.


Appointing
Decree Law 65/1983 stipulates that the expert is a judicial person or natural person with
extensive experience and ability to undertake an expertise according to the rules and procedures
provided for in the Civil Procedure Code. All courts and jurisdictions appoint experts among
those who are registered on a special roll established by the Higher Judicial Council in which it
defines their number. This roll is approved by the Minister of Justice and published at the
Official Gazette.
Lebanese military court may appoint experts among those registered on a list established by the
Commander in Chief of the army and approved by the Minister of Defence.
The Civil Procedure Code stipulates that the selection of an expert may be done upon a well-
founded decision, among experts who are not registered on the list or even a foreigner. In such a
case, the expert shall have to take the oath before the court which appointed him to carry out his
work with honesty and integrity, otherwise his work would be considered null and void.

The Conditions experts should meet:
The above-mentioned Regulations of Experts stipulate that the conditions any person who
applies for registration on the roll of experts must meet are the following:

Enjoy Lebanese citizenship since at least ten years and be over 25 years of age.
Enjoy civic rights and have not been convicted for a criminal or disciplinary infamous act provided for in the Employees Law.
Not working as a civil servant nor as an employee at any public administration.
Being specialized, educated and impartial.
Having a good behaviour and not suffering any disease nor handicap that would prevent him from undertaking an expertise.
Be a holder of a scientific or technical diploma. It may be also enough to submit a certificate that proves the registration of the applicant on the Experts’ roll since at least ten years or his practice of the profession since fifteen years.
The application for expertise shall be submitted to the registrar of the Experts’ department at the
Ministry of Justice. This application should include the applicant’s address and personal data, the
type of expertise and the mouhafazat (governorate) where he intends to work, knowing that an
expert may be appointed only in one branch and one province.

It has to be noted that sworn translators are part of the category of experts and are bound,
consequently, to the provisions of the Decree mentioned at the beginning of this section.

How the experts’ roll is established:

A committee is created by the Higher Judicial Council and entrusted with examining the
candidacy applications, meeting personally the applicants, studying their situation and
undertaking a deep inquiry into their technical and moral capabilities, by all means.

The committee may resort to any person it deems able to carry out this inquiry.
The committee has also the right to challenge an application by a well-founded decision and
irrebuttable decision if certificates submitted by applicants and the undertaken inquiry into them
don’t ascertain their knowledge and technical and moral capabilities.
The committee submits a report to the Higher Judicial Council containing the results of the
examination of the applications and related undertaken inquiries.
The Higher Judicial Council goes thoroughly through the report, studies and related inquiries
submitted by the committee, then decides the acceptance of applicants who meet the
requirements for experts and establishes a roll with names of accepted experts.
The decision of the Higher Judicial Council is irrebuttable.
The roll becomes valid only when approved by the Minister of Justice and published in the
Official Gazette.
It is valid for five judicial years and may be reviewed, at the beginning of every year, so as to
complete the number.

Activity censorship
The Higher Judicial Council appoints, at the beginning of every judicial year, a disciplinary body composed of three judges in order to examine the complaints submitted by the opponents or claims submitted against experts by the general prosecution, presidents of courts or the judicial inspection body. After hearing the experts, this body may, if need be, give them a warning or impose the following disciplinary sanctions:
the blame
the suspension from practice for a maximum period of one year
the striking off the roll of their names


Expert recusation
Causes of challenge:

The experts may be challenged whenever there exists one of the causes for challenging judges.
In case of a judicial person, the challenge request may target the judicial person as well as natural persons entrusted with the execution of the mission on its behalf even if they have been appointed by the court. In the event an expert presents in himself one of the causes of challenge, he ought to resign by himself.

The Procedure of Challenge:

The challenge request should be submitted within three days as of the date of notification of the opponent who has requested the challenge through a claim in which he explains the reasons, following the decision of the appointment of the expert, or as of the date of his notification of the causes of challenge. This claim is notified to the expert and the opponent who may, both, make comments within three days. The court decides on the challenge request within the same deadline, without convening the opponents and gives an irrefutable decision.

The Substitution of the expert:

In the event the court decides to accept the challenge request or the resignation proposal, and in case the expert refuses the task or could not have been notified or was unable to fulfill the task due to any legal impeachment, the court shall decide the substitution of the expert by another one. Upon the opponents’ request or ex officio, the court may also decide to replace the expert who fails to fulfill his duties, after hearing him, unless the court considers the hearing useless.
Expert mission
Ways of recourse to expertise
The examination:

The court may appoint an expert whose task is limited to examine the litigation object without having the right to give his advice due to the de jure or de facto effects that may result and affect the examination he is entrusted with.

The court determines the deadline within which the expert should submit his report or the date of the hearing during which he shall submit his information verbally. The expert submits his report to the registrar. Thus the report is included in the file of the case or its contents are registered in the minutes of the hearing in case it is presented verbally.

The judge des referes may order the appointment of an expert upon a claim he receives from the stakeholders before the opening of the trial so as the expert proceeds with a technical examination according to a decision further to request even without convening the other opponent.

Consultancy:

In the event a purely technical question is raised during the trial but does not require a complicated inquiry, the court may appoint an expert who shall give a consultancy on the matter.
Such consultation is given verbally unless the court decides to have it in writing. In the case the consultancy is submitted verbally, its contents shall be registered in the minutes of the hearing which shall be signed by the expert. In the case the consultancy is given in writing, it shall be submitted to the registrar and included in the file of the case.


Technical inspection:

The technical inspection by an expert is carried out only in the event the examination and consultancy are not sufficient to enlighten the court.

The court has the assessing power to evaluate the report of the inspection undertaken by the expert for this report constitutes one of the means of proof.

The expert is appointed upon a court’s decision which includes:

Name and title of the expert & the data related to his personality.
Name of the delegate judge to supervise his work if need be.
The list of matters for which the expert is recruited and the measures of urgency he shall be authorized to take.
The amount to be deposited at the Court’s Fund for reimbursement of expenses and fees of the expert and the opponent who has to deposit the said amount, in addition to the deadline of the deposit, the quantity the expert is authorized to withdraw for his own expenses and fees.
Determine the deadline during which the expert has to submit his report.
Postpone the trial until a given date while waiting for the presentation of the expert’s report.

If the opponent refuses to deposit the requested amount within the specified deadline, the court may decide as for the effects it deems necessary following this refusal. In case the opponent deposits the amount provided for in the decision of the expert’s appointment, the registrar’s clerk shall give the expert a copy of the decision to proceed with the inspection within three days and ask him to receive his mission. The expert is allowed to exercise the right to view the file of the case at the registrar, even before accepting the mission. However he cannot withdraw any paper out of the file.


The refusal of the mission by the expert:

After his notification of the decision, the expert has three days to request to be discharged from the mission. It is the duty of the president of the court or the judge who appointed him to discharge him in case they deem that the given reasons are valid. In the case the expert does not fulfill his task after having accepted it, or in case he fails to submit the report within the fixed deadline, he shall receive a warning so as he accomplishes his work according to a new convenient deadline. In case he does not respect the new deadline without giving any valid reason, he shall be replaced by another expert, subject to a fine and bound to return to the court’s registrar the amount he would have cashed for his expenses and fees. He might also be liable to a disciplinary sanction and have to pay an indemnity to the damaged party. The decision to substitute the expert and force him to return the amount he would have cashed for reimbursement of expenses and fees is irrefutable.

A copy of the decision to fine the expert who would have failed to fulfill his duties shall be sent to the Higher Judicial Council so as to be included in the file then impose adequate disciplinary sanctions against the expert.


The execution of the mission by the expert:

After having been notified of the mission and accepted it, the expert should fix a date to start his work within fifteen days as of his notification. Furthermore, he shall convene the opponents by registered mail or telegrams with acknowledgements of receipt sent at least seven days before this date in order to inform them about the place, date and time of the first meeting. In urgent cases, the decision of the expert’s appointment may provide for the initiation of work within three days as a maximum as of the date of the expert’s notification of the decision of his appointment. In such a case, the opponents shall be convened by telegrams with acknowledgements of receipt at least 24 hours before the first meeting. In extremely urgent cases, the decision of the expert’s appointment may provide for an immediate initiation of the mission and the convening by telegrams of the opponents for immediate attendance. The mission of the expert shall be cancelled in the event of a lack of notification of the opponents.
In case the expert is appointed, he must inform the delegate judge for the supervision of the date and place at which he shall start his mission.
Opponents can attend, personally or represented by their lawyers, the proceedings of technical inspection. These opponents must also submit to the expert, without any delay, all documents he deems necessary to accomplish his mission, otherwise he shall advise the court which decides then either to force the opponents to give the documents under the condition of a legal compulsion if need be, or to authorize the expert, regardless the submission of the documents, or to authorize the expert to submit his report according to the current situation. The expert must take into account the comments and requests made by the opponents. He may also request the advice of another expert but only with regards to a technical question which requires another specialization than his.

In case an obstacle prevents the expert from fulfilling his task, or it is deemed necessary to extend the scope of his mission, he shall submit a report about it to the court which shall take the proper decision.
Expertise report
The contents of the expert’s report:

The expert must draw up a report which shall include, clearly and precisely, the results of his work, his advice and the justification’s criteria of his advice. In the event there are several experts and they disagree, they should set one report in which they mention the advice and arguments of each one of them.
In case the expert requests the advice of another expert whose specialization is other than his, the other expert’s advice shall be mentioned in the report as well.

Furthermore, he must include in the report a minutes about his work along with the opponents’ attendance sheet, statements and comments, all signed by them if no objection is made. This shall be mentioned in the report as well as the expert’s detailed working sheet and signatures and statements of people he may have heard ex officio or upon the opponents’ request.

In the event of a reconciliation between the opponents, the expert must ascertain the reconciliation and submit to the court a report in which he mentions this fact and considers that his mission has no more object.


The authoritative advice of the expert:

The expert’s advice is not binding for the court. However if the court does not take it into account, it must specify the reasons which justifies this infraction. The court has also the right to take into account some elements in the report without others.

If the court finds out that the expert’s report is not clear nor complete, it may either convene the expert to request clarifications from him or ask for another expertise.

In case the expert’s report is not approved, partly or at all, for a vice in the form or incomplete foundation due to the expert’s inadvertence or mistake, the court may bind the expert to return the amount he would have cashed or entrust him with a new or additional inspection without any remuneration.
The Higher Judicial Council shall be notified of this decision.

Expert's Honorarium
As already stipulated, the appointment of the expert is done in compliance with a court’s decision which includes a clear definition of the mission he’s entrusted to carry out in addition to the deadline he’s given to accomplish the mission and submit the report as well as the amount of the advance one of the parties should pay for the honorarium of the expert. The total of the fees is specified definitively further to the submission of the report by the export.

The expert submits the report along with the minutes to the registrar in return of a receipt.
He requests the reimbursement of his expenses and fees as per an estimation statement.

Expert’s honorarium and expenses are determined as per a decision of the president of the court who appointed him or the single judge who appointed him. Expert’s fees are specified according to the works carried out by the expert as well as the difficulty and relevance of his mission, the time he spent to accomplish it and results he has reached. The determination of the honorarium must be justified.
In addition to the fees, the expert is entitled to be reimbursed for the necessary expenses he went to for the execution of his mission, if need be.

The expert is prohibited from receiving directly from a party, whatever the form, a remuneration even as reimbursement for expenses, unless by decision of the judge.
This prohibition applies to all types of expertise: examination, consultancy, technical inspection.

The expert and the opponents may object against this decision before the body which took it and within three days as of the date of notification. The objection may be made as a claim submitted to the registrar. The court decides on this claim in the deliberation room after convening the opponents. The verdict that is pronounced as a result of the claim is not subject to any way of recourse.

The expert who is registered on the roll and entrusted with the inspection for the opponent who benefits from judicial assistance is bound to accomplish the mission for free. However he may claim for his fees to the other opponent if this party is held responsible for the payment of the trial’s fees, or the party who benefits from the judicial assistance once this party’s economic conditions become better.

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