LAW FIRM DIRECTORY

Dispute Resolution

ANDRIY KUBKO,
partner at Salkom Law Firm, PhD in Law

VICTORIA KLYMIUK,
partner at Salkom Law Firm, attorney

Expert misfortune

Procedural innovations in terms of expert justice support have raised a number of problem issues: it is theoretically possible to require legal expertise in connection with the absolute majority of legal issues, since arguments can always be advanced as to whether some or other relations should be regulated differently, taking into account the analogy applied to them. And the refusal by a court to give a proper assessment of an expert opinion can discredit both the validity and fairness of a court ruling

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The institute of expertise in legal proceedings is not a new one. In any industry-specific court proceedings (regardless of whether it is a civil, economic, administrative or criminal court procedure), it will be necessary to resolve issues that require specialist knowledge. These issues are outside the scope of qualification and professional competence of the judge or  court considering one or another legal case. At the same time, the correctness of a resolution on a court case as a whole largely, and often decisively, depends on the correctness, comprehensiveness and impartiality of the assessment of such issues. This, in turn, determines the legality and validity of a court ruling and, finally, its fairness.

In such cases, the aim of the institute of forensic expertise is to provide assistance in proper resolution of court cases, complete and comprehensive establishment of the actual circumstances by a court.

 

Classical expert assessment

The institute of forensic expertise has its own characteristics depending on the type of legal proceedings in which it is applied. However, its essence is that an expert, or a group of experts, due to their qualification in certain specific areas, resolve issues, evaluate, establish facts that cannot be resolved, evaluated, established by the composition of a court. This is due to the fact that special knowledge and skills are required that go beyond the qualifications of the judge or the panel of judges considering a case.

The general essence of the rules governing the institute of forensic examination comes down to the establishment of specific rules, according to which the expert should carry out his/her activities. This is connected to some extent with his/her privileged role — the availability to the expert of special knowledge in a given issue that other participants in the process do not possess.

This is, in general terms, traditional for the Ukrainian legal system’s understanding of the institute of forensic expertise.

It is commonly known that in December 2017 significant changes in the procedural legislation of Ukraine came into force. Three main codified legislative documents of a procedural nature, i.e., the Civil Procedure Code (CPC) of Ukraine, the Economic Procedure Code (EPC) of Ukraine and the Administrative Proceedings Code (CAP) of Ukraine, began to operate in their new wording.

 

Law experts

A number of institutes of procedural law underwent changes, and some of them have received a "new philosophy" that is not characteristic of the legal system of Ukraine. Innovations did not come via forensic expertise issues either.

Now, procedural legislation allows for legal expertise in legal proceedings. The issue here is the enlisting of a law expert who will provide his/her opinion on legal issues to participate in the process.

The rules governing this type of expertise are included in the CPC, EPC and CAP of Ukraine. Legal expertise is possible in terms of civil, economic and administrative process. Regulation of legal expertise is generally identical for all these three types of legal proceedings.

What is this institute? First of all, the array of issues on which legal expertise can be conducted is determined. This distinguishes the institute of legal expertise from the "traditional" expertise within the framework of legal proceedings, which may concern any issues if they require special knowledge and, therefore, cannot be resolved by the judge.

The opinion of a law expert may cover the following questions: firstly, application of analogy of the law or legal analogy; secondly, content of the provisions of a foreign law according to their official or generally accepted interpretation, practice of their application and doctrine in the corresponding foreign state. Any other issues that do not relate to the specified array of issues cannot be referred for resolution to a law expert; legal expertise cannot be carried out in relation to them.

Requirements are established for a person who is a law expert. Such an expert shall be a person who possesses a degree and is a recognized expert in the particular field.

Some requirements for the content of an expert opinion drawn up by a law expert are regulated. Such an opinion shall not contain an assessment of evidence, findings on the reliability or unreliability of particular evidence, superiority of some evidence over other pieces of evidence, and recommendations as to what decision should be taken by the court.

Also, the CPC, EPC and CAP of Ukraine establish features relating to the assessment and legal status of an expert opinion on legal issues, that also distinguishes legal expertise from other types of expertise in court proceedings. The opinion of a legal expert is not considered to be evidence. An expert opinion is, according to the law, of an auxiliary, consultative nature and is not binding on the court.

 

Issues of legal expertise

These innovations of the law in terms of legal expertise have caused a number of problematic aspects, resolution of which will largely determine the further development of this institute in national law and the efficiency of its application.

On what issues can legal expertise be conducted? The issue of applying the analogy of the law or legal analogy is broad enough. Without exaggeration, it can be said that the absolute majority of legal issues, including those arising in judicial proceedings and requiring court evaluation, can be considered in terms of the analogy of law or legal analogy. Suffice to mention the debatable issue of the possibility or impossibility of applying the provisions of civil contract law by analogy to the labor relations provided for by an employment contract; the application by analogy of the provisions of civil legislation to economic relations; the application by analogy of some international procedural rules on the activities of international judicial bodies in national proceedings and a host of other issues. Therefore, it is theoretically possible to require legal expertise in connection with the absolute majority of legal issues, since the arguments can always be advanced as to whether some or other relations should be regulated differently, taking into account the analogy applied to them. And the refusal of a court to give a proper assessment of an expert opinion can create reasonable doubt as to the validity and general fairness of a court ruling.

As for the provision that legal expertise can be conducted regarding the content of the provisions of foreign law, we should first find out what should be understood by the term "provision of foreign law". Does it include exclusively the "internal" legislation of one or another country, or can this concept also cover the provisions of international law: international treaties, conventions, protocols, covenants, etc.? On a formal level, the provisions of international law, as recognized and ratified by one or another state, become part of the law of that state. Is it possible to conduct a legal expertise, for example, regarding the content of the Convention for the Protection of Human Rights and Fundamental Freedoms or bilateral interstate agreements on mutual protection of investments?

In our opinion, the answer is more positive than negative, because the rulings of the European Court of Human Rights are binding not only on Ukraine, but also on those foreign states which are parties to the Convention. In addition, the decisions of the European Court of Human Rights are a precedent for Ukraine, regardless of whether they are made in respect of Ukraine or in respect of other states.