Proposition 51K2540

Projet de loi modifiant le Code judiciaire en ce qui concerne l'expertise et rétablissant l'article 509quater du Code pénal.

General information ¶

Authors

CD&V Liesbeth Van der Auwera
LE Melchior Wathelet
MR Alain Courtois
Open Vld Alfons Borginon
PS | SP Éric Massin
Vooruit Walter Muls

Submission date

June 9, 2006

Official page

Visit

Status

Adopted

Requirement

Simple

Subjects

civil procedure expert's report ordered by a court criminal procedure

Voting ¶

Voted to adopt

Vooruit Ecolo LE PS | SP Open Vld MR VB

Contact form ¶

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Discussion ¶

April 12, 2007 | Plenary session (Chamber of representatives)

Full source

I am referring to my written report.

Are registered as part of the general discussion: mevrouw Van der Auwera, Mr. Courtois, by Mr. Borginon and Mr. by Wathelet.

Mr. Monfils, you have submitted a proposal concerning judicial experts, would you like to intervene in the general discussion?

and no.

Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker, Mr. Speaker.

We are the requesting party to improve the efficiency of expert investigation, with a more active role for the judge, emphasizing the subsidiarity of the expert procedure and a better vision of the duration and the expected costs.

The introduction of the subsidiarity principle requires the court to examine whether other, cheaper investigative measures cannot be sufficient to resolve the dispute. The judge should also be able to intervene when the expert investigation prevents a quick and efficient settlement of the case and should be able to sharply align the expert investigation assignment with strict deadlines and compensation.

It is indeed impossible to explain to applicants that the costs of an expert examination are sometimes much higher than the value of the dispute.

The expert examination is also a stumbling stone for many magistrates because the magistrates are powerless when a party uses the appointment of an expert, the payment of a commission on his honor or disputes about the correct follow-up of the procedure by the expert to delay the settlement of a case.

For these reasons, CD&V has submitted a bill itself. However, we believe that a very important pain point has been left behind in the proposal to be voted today, namely the introduction of a system of lists of experts recognised as judicial experts by the courts. In order to ensure the quality of the judicial expert and the effective and legally correct conduct of an advancement expert, it is necessary to ensure that only persons with real experience as judicial experts in the relevant field, sound training in judicial experts, good knowledge of the specific legal rules in question and whose integrity cannot be questioned can be appointed as judicial experts.

We therefore advocate the establishment of national lists in order to have well-equipped experts who can make expert research their main activity and to develop specialties at national level without overload. That national list would list the experts per court district or court district of the Court of Appeal, so that the magistrates may preferably, in the case of equivalent competence, appoint an expert from a geographically closer area, in order to avoid unnecessary travel costs.

Furthermore, the work of the expert should be continuously evaluated and the information thus obtained should be centralized.

Today, it is not mandatory to appoint an expert on a list and the parties can always replace an expert appointed by the judge with an expert they choose by agreement.

In addition, it should be easier to replace an expert who does not deliver his report within the specified deadlines and, if necessary, to sanction him by listing repeated delays.

The expert investigation is an area of excellence where the active judge should be put into practice.

Mr. Speaker, Mrs. Minister, colleagues, it is a hassle to say that Parliament no longer had the time to make a decision in both Chambers on the bill, more specifically on the introduction of lists of experts, which falls under the mandatory bicameral system. For months, the case has been on the table of the Justice Committee. The latest State Council opinion that highlighted the mandatory bicameral character dates back to August 2006.

However, the Justice Committee held that there were more important priorities. This resulted in the fact that the expert proposal had to be handled on a draft, in addition without the lists of experts. The European Parliament will have to deal with this in the next legislature.

However, we are not the only party asking for clear rules on quality criteria and for transparent lists of experts based on the above rules. The High Council for Justice, the Order of Flemish Balies and the judicial experts themselves also insist on this.

Furthermore, Article 991 of the Judicial Code stipulates: “The courts and courts may draw up lists of experts, in accordance with the rules determined by the King.”

We regret today that no work has been done on the aforementioned provision. We will therefore remember.

Mr. Speaker, Mrs. Minister, dear colleagues, the issue that concerns us today affects the citizen in the deepest of himself, because it is about access to justice. What does the citizen demand in this regard? He wants effective, meaningful justice, supported by competent, loyal, impartial and independent magistrates. “Last but not least,” he said, “he wants a quick justice.”

Moreover, if these rights are recognized to him, they must be consecrated and admitted concretely, beyond the symbolic obtaining of a judgment. Now, more and more, we find that, for certain disputes, the magistrate will have to resort to special experts who will have to help him resolve the dispute on which he has to decide. Here the question arises of the professionalization and neutrality of the specialists consulted by our jurisdictions.

The use of professional experts can be effective only if the organized procedure for using these external opinions exists and does not constitute an obstacle to the course of a trial. This encourages me to say that we are very close to the question of justice for the citizen on a day-to-day basis. This means not only effective and meaningful justice, competent magistrates giving their opinions within a reasonable time, but also a dispute made by experts, competent, professional and within an acceptable time.

This was the meaning of several parliamentary initiatives that were submitted. Some targeted the qualitative aspect of experts, while others proposed procedural improvements.

These proposals from all political parties demonstrate, in any case, not only their interest in this branch, but also the fact that everyone is now aware that the complexity of the files makes it impossible to accomplish the task of experts within reasonable time.

The committee decided to create a working group. I must say that the work was constructive and took place in an extremely pleasant atmosphere. We were able to reach a consensus, thanks to our colleague Borginon, who was able to demonstrate his competence but also express his willingness to consensus.

The question of the extent of the reform we intended to carry out arose from the very beginning. We had the ambition to resolve both issues, namely the qualification and approval of experts as well as the procedure reform provided by the Judicial Code.

If there were differences on the first aspect, on the other hand, we were all in favour of a procedural reform in this matter. We found it important to take advantage of this very exceptional community of views in order to ⁇ the fundamental objective for the best running of civil proceedings. Let’s take one step after another. What we just did is already meaningful!

I am ⁇ pleased that the next procedure provides for greater predictability between the time limits and the costs of the expert assessment. These two aspects constitute the two major obstacles to access to informed justice. Prosecutors are reluctant to engage in expert proceedings of which they often cannot estimate neither the cost nor the duration. They often give up on them, while they would be necessary for the establishment of their rights, and this is not acceptable.

I also welcome the more active role of the judge at all stages of the procedure:

- determination of the appropriate use of judicial expertise, which remains a subsidiary measure. The judge checks whether there are other less expensive measures to resolve the dispute;

- establishment of an installation meeting, where essential parameters such as the duration of the mission, the schedule of the mission, the estimated cost of expertise and reasonable provisions to be reconciled or released by each party;

- resolution of all disputes that may arise during the course of the expert assessment itself;

- Definitive taxation of expert hours.

I welcome the legal certainty that the new procedure will bring to the judge by clearly dictating that only the judge can extend the deadline for submitting the final expert report and that the expert is no longer entitled to demand payment directly from the parties under penalty of criminal sanctions. These were two gaps in the current procedure that needed to be addressed.

In conclusion, I believe that we have made an important step in the necessary reform of judicial expertise. But the other aspect remains: the establishment of a system allowing quality control of the experts designated by the courts, possibly by the establishment of a list of approved experts. The MR group and I will not fail to revive this reflection, which we hope to be as constructive as this on this topic, in the upcoming deadlines.

Mr Borginon is speaking, followed by Mr Wathelet.

Mr. Speaker, Mrs. Minister, Ladies and Gentlemen, I would like to give you a brief history of the creation of this bill.

When I became chairman of the Committee on Justice at the beginning of this legislature, it quickly turned out that there was a certain interest in all banks to do something about the legislation on expert investigation. Also from the Cabinet there was a clear interest in making any progress in it, without wanting to work with a firmly aligned idea to reach a certain final result. In the Justice Committee we immediately made a number of decisions on this subject that had a great impact on the final outcome.

First and foremost, we organized a number of hearings with all those involved in the problem of expert research. It mostly showed that, despite the fact that the law is clear, the practice in all possible districts differed very much. Just for this reason it was useful to create a new and simple procedure.

A comparative overview of all the proposals submitted by the various colleagues from all political groups was also made. Some proposals were very comprehensive. Sometimes they were also derived from texts that have already circulated before. Others had more aimed at arranging part-facets. Others were more focused on the problem of the recognition of the experts and the recognition of some experts, such as the auto experts, or on the problem of the lists.

There was also an important opinion from the High Council for Justice. I think I can say that the opinion of the High Council for Justice in these has probably proved to be the most real source of inspiration in the final text. What was the problem we faced? There were a lot of good ideas, but also a lot of texts that lay side by side and yet had to be brought together in some way. We then set up a working group in which all groups represented in the Committee on Justice were able to participate.

We tried to distill a text based on the comparative table of all proposals. When there were disagreements between the proposals or when gaps had to be filled, we have taken the text of the High Council for Justice as the basis. I think it is also the place to pay tribute to the people who are here today not in this hemisphere, but on the sideline, as an employee of a member of parliament or as an employee of a minister, have tried to shape these texts. If I have been able to contribute to the consensus formation in this story, it is also because I could appeal to very good employees. They supported me in that.

We made a text, a kind of basic compromise, and that discussed extensively in the working group. We quickly came to the conclusion that the problem of the lists and recognition, which was already discussed, was not mature. If we had tried to insert that into the current text, we would never have landed for the simple reason that everyone agrees that something must happen, but that we actually disagree about what should then happen, at what level one should organize the lists and how far one should go in the recognition of the experts, whether one should create a kind of separate order of experts, or whether one should rely more on the existing technical expertise. We didn’t actually get out of that and that’s why we got it out already at that stage.

The text that comes from the working group is the text of the bill, as discussed here today, with the meaning that we have then sent it to the State Council for technical legal advice. We took into account, as far as possible, all the comments of the State Council and the discussion of the amendments in the Justice Committee was therefore primarily about the application of the opinions of the State Council. Anyone who wishes to gain more insight into the preparation of the text in the future, I can only recommend not to remain stuck in the discussion in the committee stricto sensu, but also to consider the discussion of the working group. An extensive explanation of this discussion can be found in the original text of the bill.

I think the final result is a good text, which uniformizes, modernizes, accelerates the procedure of expert investigation and which also reflects the trend of giving a more active role to the judge. In summary, it can be a real progress in line with what citizens can expect from a modern judicial procedure related to expert investigation.

So, my colleagues, a few more descriptive words about the bill. I hope that the text can be dealt with by the Senate either in this or in the next legislature. I think that in the end we will have reached a good text and have made a significant contribution to the improvement of justice.

Mr Wathelet, you are the last speaker in the general discussion. The Minister will then take the floor if he wishes.

Mr. Speaker, Mrs. Minister, dear colleagues, I will also be quite short on the subject, especially since an important work has been done in the Justice Committee, within the working group.

We all agreed that something had to be done at the level of expertise. As Mr. said. Courtois, from time to time, is concerned with the speed of justice. In fact, it is realized that expertise often takes time and slows down part of the procedure. Attention, you should also not fall into the caricature: expertise is, in many cases, necessary or even indispensable, especially when it comes to assessing bodily or moral damage and to expert machines or problems related to either construction or architectural work. It is also not inappropriate that some experiments take some time. The fact is that it was well understood that certain expertises were the cause of the delay taken in certain procedures. Therefore, a solution had to be found.

As Mr. said. But this proposal will not resolve everything. It will not make sure that, suddenly, the expert examinations will go much faster and that they will no longer delay the procedures at all. It is clear! Nevertheless, it makes it possible to insert, at the level of the procedure, a number of guards in the head of the magistrate, the payment of the expert, the recording of the various amounts and in the context of the procedure in order to leave from time to time to the parties the means to speed up the procedure.

Until now, parties who saw their trial slowed through an expert could request that a new expert be appointed. However, you will understand that the appointment of a new expert delays their procedure even further. This proposal therefore provides a certain framework for optimizing the mechanisms that exist today at the level of the Judicial Code.

The purpose of the proposal is not to pre-finance expertise but rather to pay experts at the time they should be, as soon as possible, especially when it is the parties who pay the expertise.

I have already said in the working group and in the committee: in the future, when using expertise, accurate information on skills and status will need to be available. This question will have to be addressed at the level of the expert as such: the status of the experts, the list of experts, the conditions to be met to be an expert, how to use these experts and how they can be included in those lists which must be made available to the magistrates when they are to designate one.

Of course, this proposal is limited to a few procedural questions. It does not resolve everything and does not, in our opinion, go far enough. We would have liked to have this status and this list of experts. Mr. Borginon, you have witnessed the fact that I pledged within the working group for this list. However, this proposal is a step forward.

I have asked you many times about the benefits of the experts. Some progress has already been made. However, in many expert trials, experts are paid relatively late and their fees are not always up to the charges and tasks they are assigned. These people sometimes need to have very strong expertise in certain areas.

We often talk about computer science, but we can also talk about copyright, construction and civil engineering. These people must have a lot of knowledge; I think they should be remunerated at their just value.

This proposal is a step forward, even though not everything is settled.

We have a small criticism regarding the list of experts that has not been annexed.

Furthermore, we would have preferred, as we indicated in our proposal, a real status for experts with, when the parties do not pay the expertise, appropriate fees and payments on time.