Should the expert's opinion contain the phrase «for submission to the court»?
In many cases, especially before the opening of proceedings, customers receive expert opinions without the wording «for submission to the court». This forces them to repeatedly apply for an expert opinion and incur additional costs.
This problem was raised by the Directorate of Justice and Criminal Justice of the Ministry of Justice of Ukraine as part of legal monitoring.
It is noted that in practice, such formal requirements do not affect the content of the conclusions and do not have a significant impact on the justice process. However, in order to eliminate the unnecessary burden on the parties to the case and experts, it is advisable to analyze the need to exclude the requirement to indicate the phrase «for submission to court» in the document from the procedural legislation or to resolve this problem in another way.
The National Bar Association of Ukraine expressed its opinion on this issue. The Committee on Human Rights Protection believes that such a requirement is not based on the law and violates the basic principles of adversarial proceedings and the discretionary nature of the judicial process. After all, such a wording in the expert's opinion does not affect the criteria for assessing evidence for its relevance and admissibility.
At the same time, the UNBA drew attention to the following. Pursuant to Articles 102 and 106 of the Code of Civil Procedure, an expert opinion may be prepared at the request of a party to a case or on the basis of a court order to appoint an expert. A party to the case has the right to submit to the court an expert opinion prepared at its request.
It should be noted that a person acquires the status of a party to a case after the proceedings are initiated, so an expert opinion commissioned by a person and drawn up before the proceedings are initiated is obviously obtained in violation of the procedure established by law, i.e., it is inadmissible evidence.
Therefore, it is necessary to amend the right of a party to the case to submit to the court an expert opinion commissioned by him/her, including before the commencement of the proceedings. In many cases, ordering and conducting an expert examination may precede going to court, which, in fact, determines the grounds or expediency of going to court.
In addition, the UNBA noted, the participant has the right to submit to the court an expert opinion drawn up, among other things, not on his order. According to Part 1 of Article 103 of the Code of Civil Procedure, the court appoints an expert examination in a case under a set of the following conditions:
1) to clarify the circumstances relevant to the case, special knowledge in a field other than law is required, without which it is impossible to establish the relevant circumstances;
2) the parties (a party) have not provided relevant expert opinions on the same issues or the expert opinions raise doubts as to their correctness.
However, pursuant to Article 106(1) of the Code of Civil Procedure, a party to a case has the right to submit to the court an expert opinion prepared at its request.
Pursuant to Article 42 of the Code of Civil Procedure, the parties to a lawsuit are the parties and third parties. When considering claims in writ proceedings, the parties to the case are the applicant and the debtor. In cases of special proceedings, the parties to the case are the applicants and other interested parties.
In other words, the court appoints an expert examination in a case in which the parties (a party) have not provided relevant expert opinions on the same issues or the expert opinions raise doubts as to their correctness.
At the same time, for example, in lawsuits, an expert opinion may be submitted by a third party. In this case, the expert opinion submitted by the third party will be irrelevant.
Therefore, it is advisable to change the words «by the parties» to «by the participants» in clause 2 of part 1 of Article 103 of the Code of Civil Procedure.
Such changes and additions will expand the procedural possibilities for protecting the rights of participants in the process, promote the objectivity and comprehensiveness of the trial, as well as save the procedural time of the court allocated for the case.
The full text of the UNBA's proposals, which were sent at the request of the Ministry of Justice, can be found here.
Popular news
Legislation
Proceedings against military personnel following AWOL require clear deadlines — UNBA
A soldier’s return to duty after AWOL does not necessarily mean the end of criminal proceedings. To ensure that the case does not remain at the pretrial investigation stage, a clear procedure for the investigator and prosecutor is required.
Guarantees of the practice of law
Guarantees for advocacy without protective measures: proposed changes to the codes
The current law sets forth the rights and guarantees of the legal profession, but lacks the tools to protect them. The future law on advocacy is intended to fill this gap through amendments to criminal, administrative and procedural legislation.
Legislation
A bill implementing the Convention on the Protection of the Professions of Lawyer has been introduced
The constitutional guarantees of legal aid, defense, and the independence of advocacy cannot be realized without protecting advocates from unwarranted interference in their professional activities, including searches, the seizure of professional materials and the use of criminal procedural mechanisms to exert pressure.
Abroad
The CCBE is discussing European justice and issues related to the protection of advocates
Today, October 2, a meeting of the Standing Committee of the Council of Bars and Law Societies of Europe (CCBE) is taking place in Brussels. On the agenda are the protection of the advocate profession, the rule of law, attorney-client privilege, and changes in the European justice system.
Rule of Law Roadmap
The UNBA presented the key provisions of the future law on advocacy in Brussels
The Ukrainian National Bar Association presented its proposals for the upcoming law on advocacy, aligned with the Rule of Law Roadmap. The presentation covered topics such as access to the profession, self-governance, disciplinary procedures, professional development and guarantees for the practice of advocacy.
Discussion
First the return of assets, then subsidiary liability — an opinion
In bankruptcy cases, the legal entity’s ability to preserve and restore the financial foundation of its operations requires legal protection. In this regard, the right to solvency in which the legal entity is the aggrieved party should be an independent object of legal protection.
Educational events
Advocates were taught to voice their complaints without making accusations
In a difficult conversation, it’s easy to confuse facts with opinions, feelings with accusations, and requests with demands. How can you express dissatisfaction, explain your own needs, and propose a specific solution while still allowing your conversation partner the opportunity to refuse or suggest an alternative?
Guarantees of the practice of law
Search of an advocate's office after client's acquittal: criminal complaint filed
In Kyiv, law enforcement officers conducted a search of the home of an advocate who had defended a client acquitted by the court and seized materials from the advocate’s case file. The proceedings were initiated shortly after the acquittal, even though the document they were searching for was already included in the court case file.
Publications
Vasyl Kolishnyi, «Law and Business» Supporting mental health should become part of the professional culture of the Bar, - H. Udovenko
Volodymyr Matsko Extradition during wartime: when the risks outweigh the request
Volodymyr Matsko Extradition as a systemic form of rights violations
Victoria Yakusha, Law and Business The anti-corruption vertical cannot «take care» of the Bar as an institution, - acting head of the HQDCB
Censor.net Protecting advocates – protecting justice: addressing concerns about the new law
Ihor Kolesnykov A BRIEF SUMMARY REGARDING THE APPLICATION OF THE ORDER ON EXTENDED CONFISCATION IN LATVIA REGARDING FINANCIAL ASSETS OF…
Valentyn Gvozdiy WORKING IN A WAR ZONE
Lydia Izovitova Formula of perfection