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.