Legal status and meaning of opinions

Introduction

In accordance with subpara.4 para.3 Article 6 of the Federal Law of the Russian Federation dated May 31, 2002 No 63-FZ “On Advocacy and the Bar”, an advocate has the right to involve on a contractual basis professional experts to clarify matters related to the provision of legal aid.

Such experts are entitled to submit their opinions for the purposes of clarification of the issues raised by an advocate.

The opinions of experts involved by an advocate (expert opinions, specialist opinions, professional opinions) can be used by an advocate in order to prove or strengthen the legal position of the client in the case in the course of settlement of disputes in civil, administrative and criminal proceedings, as well as in the arbitration proceedings, including international commercial arbitration courts.

Submission of such opinions is not inconsistent with the effective legislation of the Russian Federation governing handling of disputes in state and arbitration courts, as well as with the rules of arbitration courts, including international commercial arbitration courts.

If an opinion is delivered by a recognized expert in a specific field, Doctor of juridical sciences, professor, it substantially consolidates the position of a party. In practice, legal opinions often play a decisive role during adjudication in the case.

1.Submission of opinions to state non-judicial bodies and organizations

Submission of opinions to state non-judicial bodies and organizations does not require compliance with any formalities.

2.Submission of opinions to state courts

The procedure of submission of opinions to state courts is formalized.

2.1. In accordance with the Arbitration Procedural Code of the Russian Federation dated July 24, 2002 No.95-FZ (RF APC), a party may submit a specialist opinion.

Based on para.1 Article 65 of the RF APC, each person participating in a case shall be obliged to prove the circumstances to which he/she refers as to the ground of his/her claims or objections.

According to para.1 Article 66 of the RF APC, the evidence shall be presented by the persons participating in the case.

A list of evidence provided for by the effective RF APC is non-exhaustive. Para.2 Article 64 of the RF APC sets forth that “There shall be admitted as evidence written and material evidence, … other documents and materials.”

There is no doubt that a specialist opinion can be classified as “other documents”.

According to para. 1 Article 55.1 of the RF APC, “as a specialist in an arbitration court shall be deemed the person with necessary knowledge in an appropriate specialty giving consultations in respect of the matters concerning the case being tried.”

In contrast to an expert who is appointed by the court (para.1 Article 55 of the RF APC), a specialist may be engaged by one of the parties (which follows from para.1 Article 55.1) to give a written opinion for the purpose of its production as evidence in the case.

If a specialist opinion is submitted by a party to the proceedings in the course of the pending case trial, it will be deposited with the case file upon request of that party in accordance with para.1 article 41 of the RF APC according to the general rules of the RF APC (in particular, the court decides whether to deposit it or not, not taking into account the position of the other party).

If a specialist opinion is submitted by the party as exhibit to the statement of claim, the issue of its deposition with the case file will not be considered separately. In this case the specialist opinion will be examined as one of the documents proving the circumstances on which the claimant bases his/her claims (subpara.3 para.1 Article 126 of the RF APC).

2.2. Civil Procedural Code of the Russian Federation dated November 14, 2002 No. 138-FZ (RF CPC) does not exclude the possibility of submission by the parties of professional opinions.

Compared to the RF APC, the effective RF CPC contains more formalized and detailed requirements to the institution of proof.

In accordance with para.1 Article 55 of the RF CPC, seen as the proof of the case shall be information about the facts obtained according to the procedure prescribed by law based on which the court establishes the existence or absence of the facts substantiating the claims and objections of the parties, as well as of other circumstances that are of importance for the correct consideration and resolution of the case.

This information may be obtained from the explanations of the parties and third persons, the testimony of witnesses, written and material evidence, audio and video recordings, and from expert opinions.

An expert is appointed by the court (Article 79).

A legal status of a specialist is defined in para.1 Article 188 of the RF CPC:

“If this is necessary for an examination of the written or material evidence, reproduction of an audio or a video recording, ordering of an expert examination and questioning of the witnesses, as well for taking measures to obtain the proof, the court may invite specialists for giving consultations, explanations and provision of direct technical assistance (taking photos, compiling plans and schemes, selecting the samples for the expertise, appraisal of the property).”

Therefore, an expert and a specialist are appointed by the court. However, the RF CPC does not contain a prohibition of provision of opinions of professionals (professional opinions) as written evidence in the case.

According to para.1 Article 71 of the RF CPC, written evidence is the evidence “containing information about the circumstances relevant to examination and resolution of the case.” When filing a statement of claim with the court a party may attach a professional opinion as one of the evidence proving the circumstances on which the claimant bases his/her claims (Article 132 of the RF CPC). In this case the professional opinion automatically becomes part of the case file of the moment of listing the case for trial.

In the course of dispute examination the party has the right, similar to the rules fixed in the RF APC, to file a motion for depositing the professional opinion with the case file in accordance with para.1 Article 35 of the RF CPC. Such motion will be considered according to the general rules of the RF CPC (in particular, the court will decide whether it should be deposited or not taking into account the position of the other party).

2.3. Federal Constitutional Law “On the Constitutional Court of the Russian Federation” dated July 21, 1994 No. 1-FKZ provides for the possibility for the parties to engage experts (who provide expert opinions).

Both experts and specialists participate in the proceedings in the Constitutional Court.

Status of an expert

Following the provisions of Article 63, an expert is a person possessing special knowledge on questions relevant to the case.

An expert is considered a party to the proceedings in the Constitutional Court of the Russian Federation (Article 52). During oral hearings the Constitutional Court of the Russian Federation shall hear the explanations of the parties, testimony of experts (Article 32).

An expert may be engaged by the party. A request shall be filed with the Constitutional Court. Based on Article 38 the lists of experts who are expected to be summoned to appear before the Constitutional Court as well as “other documents and materials” (in particular expert opinions) may be enclosed to the request.

The Constitutional Court may decide to summon the expert. Upon completion of presentation of his/her opinion, the expert is obliged to answer the additional questions of judges of the Constitutional Court of the Russian federation and the parties.

Status of a specialist

Based on Article 49, in order to prepare a case for a hearing, draw up a draft decision of the Constitutional Court of the Russian Federation and set forth the materials in a session, the Constitutional Court of the Russian Federation shall appoint one or several judges-rapporteurs. The judge-rapporteur may refer to consultations of specialists (Article 49).

Based on Article 50, the orders of the Constitutional Court of the Russian Federation to engage specialists (give explanations, consultations and set forth professional opinions on the cases under consideration) mandatory for all bodies, organizations and persons to whom they are addressed. Therefore, a specialist may not be engaged by a party.

2.4. Criminal Procedural Code of the Russian Federation dated 18.12.2001 No. 174-FZ (RF CPC) provides for the possibility to submit a specialist opinion.

A specialist shall be engaged by the parties or the court in the case on the basis of Article 58 of the RF CPC for the purpose of clarifying to the parties and the court of the issues falling within his professional competence. Such clarification can take place, in particular when:

– the specialist submits written opinion at the initiative of any party or the parties (para.3 Article 80 of the RF CPC);

– the specialist is interrogated in the course of preparation for the trial or in court (para.4 Article 80, para. 4 Article 271 of the RF CPC).

A distinction is made between an opinion of a specialist and evidence of a specialist.

The opinion of a specialist – a written judgment on the issues raised before the specialist by the parties (para.3 Article 80 of the RF CPC).

The evidence of a specialist – data imparted by him/her during an interrogation on circumstances which require special knowledge, as well as the clarification of his/her opinion (para.4 Article 80 of the RF CPC).

Involvement of a specialist is the right not only of the interrogation body, interrogating officer, investigator, prosecutor and the court, but other participants of the process both on the part of prosecution and on the part of defense.

It is important to draw attention to para.4 Article 271 of the RF CPC which sets forth that “the court shall have no right to deny the request for an interrogation in the court session as a witness or specialist of the person, who has come to the court at the parties’ initiative”.

It is noted in the comments on the application of this provision (Ruling of the Constitutional Court of the RF dated 21.10.2008 No.514-О-О and Ruling of the Constitution Court dated 24.02.2011 No.264-О-О) that the contemplated provisions are primarily intended to secure the conventional right of the criminal defendant to summon for interrogation the witnesses in his/her favour on the same conditions as for the witnesses testifying against him/her; at the same time the rule that the court shall have no right to deny the request for an interrogation in the court session as a witness or specialist of the person, who has come to the court at the parties’ initiative can not be considered as an absolute one: the criminal defendant and his/her defender can be denied the request for interrogation of the specialist and deposition of his opinion with the case file, if the circumstances which it can establish are irrelevant to the case.

Difference of a specialist from an expert

The RF CPC deals with a legal status of an expert and a legal status of a specialist.

Just like an expert, a specialist has special knowledge in the field of science, engineering, industrial production, arts and other spheres of human activity. However the object of a specialist’s activity in criminal proceedings is slightly different from that of an expert. Therefore, it would be a mistake to identify an expert opinion delivered in court with the explanation of a specialist contained in his/her opinion or testimony.

An expert is obliged not only to speak but to act, too. He/she conducts studies, i.e. the acts requiring the conditions and time (experiments, object comparison and identification activities, etc.) different from the conditions and the time spent in a court session.

A different situation exists when a specialist gives his/her explanations. The duty of a specialist to give explanations is the duty to speak, not to act. Giving explanations he/she is deprived of the possibility to conduct any studies, save for those which consist in logical conclusions with the use of special knowledge. Moreover, these conclusions should be apprehensible and easy to perceive by non-specialists in the context a court session. Therefore, the explanations of a specialist can not replace an expert opinion, if the answers to obscure questions require independent studies going beyond customary logical conclusions.

2.5. Code of Administrative Court Proceedings of the Russian Federation dated March 8, 2015 No.21-FZ (the RF CACP) does not exclude the possibility to produce professional opinions.

The RF CACP provides for participation in the proceedings of both a specialist and an expert. Both of them are appointed by the court.

A legal status of an expert is defined in Article 49 of the RF CACP (procedure of commission of an expert examination is defined in Article 77 of the RF CACP), legal status of an expert – in Article 50 of the RF CACP. A key difference between an expert and a specialist is the same as was described in the context of the RF CPC. Just like an expert, a specialist has special knowledge in specific field. However the object of a specialist’s activity is different from that of an expert. An expert is obliged not only to speak but to act, too. He/she conducts studies, i.e. the acts requiring the conditions and time (experiments, object comparison and identification activities, etc.) different from the conditions and the time spent in a court session. The duty of a specialist to give explanations is the duty to speak, not to act.

Along with participation of experts and specialists in the proceedings there is no prohibition in the RF CACP to produce opinions of professionals (professional opinions) as written evidence in the case. According to para.1 Article 70 of the RF CACP, written evidence shall be the evidence “which contain information about the circumstances relevant to the administrative case…”.

When filing an administrative statement of claim, a party may enclose such professional opinion as one of the documents “proving the circumstances which underlie the claims of the administrative claimant” (subpara.3 para.1 Article 26 of the RF CACP). In this case the professional opinion becomes part of the case file of the moment of listing the case for trial.

In the course of examination of the case the party may file a motion for deposition of the professional opinion with the case file according to para.1 Article 45 of the RF CACP.

2.6. Code of Administrative Offences of the Russian Federation dated 30.12.2001 No. 195-FZ  (the RF CAO) does not contain a prohibition to submit opinions of professionals (professional opinions) as evidence in the case.

Based on the RF CAO, experts and specialists may be involved in proceedings in the case. As a specialist may be engaged any person having knowledge required for assisting in detection, fixation and seizure of the evidence as well as in the use of technical means (para. 1 Article 25.8 of the RF CAO). As an expert may be engaged a person who has special knowledge in the field of science, engineering, arts or craft sufficient to carry out expert examination and produce an expert opinion (para.1 Article 25.9 of the RF CAO).

Here, the same difference between a specialist and an expert as described above in the context of the RF CPC can be tracked.

Just like an expert, a specialist has special knowledge. However the object of a specialist’s activity is different from that of an expert. An expert is obliged not only to speak but to act, too. He/she conducts studies, i.e. the acts requiring the conditions and time (experiments, object comparison and identification activities, etc.) different from the conditions and the time spent in a court session. The duty of a specialist to give explanations is the duty to speak, not to act.

The RF CAO does not give a direct answer to the question who may engage experts and specialists. However, the logic of presentation of the relevant provisions reveals that they are engaged by the court.

At the same time, when examining an administrative offence case according to the procedure laid down by Article 29.7 of the RF CAO (and as well as when considering an appeal against a decision in the case on an administrative offence according to Article 30.6 of the RF CAO) not only explanations of a specialist and an expert opinion shall be heard. Other evidence, too, shall be studied. Among other evidence fall, in particular, “documents”. Based on para.1 Article 26.7 documents shall be regarded as evidence, if the data, stated or attested therein by organizations and citizens, are relevant to the proceedings in the administrative offence case.

In its comments on provisions of Article 26 the Constitutional Court noted (Ruling of the Constitutional Court of the RF dated 20.12.2016 No. 2605-О ) as follows: “By implication of the cited legal provisions as evidence in the administrative proceedings can be recognized any documents which enable the establishment of any circumstances to be clarified in the case on administrative offence. These documents may be deposited with the case file at any stage of the case, at which the possibility of production of evidence is not excluded.”

Thus, the RF CAO does not prohibit the production of opinions of professionals (professional opinions) as evidence in the case (“the documents”).

3.Arbitration

3.1. The Federal Law of the Russian Federation “On Arbitration” (arbitration proceedings) in the Russian Federation dated December 29, 2015 No.382-FZ provides for submission of expert opinions as evidence.

In the Law the term “expert” is used. The term “specialist” is not used.

In accordance with subpara.6 para.2 Article 25 the statement of claim shall indicate the evidence proving the grounds on which the claims are based.

It follows from the tenor of para.3 Article 27 that the parties may submit in the course of proceedings in the case the expert opinions prepared at the initiative of the party. Para.3 Article 27 of the Law dated December 29, 2015 sets forth: «All statements, documents and other information submitted by one of the parties to the arbitral tribunal shall be sent to the other party too. The copies of any expert opinions, or other documents which constitute evidence and on which the arbitral tribunal may rely in making its decision shall be communicated to the parties”.

Along with the experts engaged by the parties in the proceedings, an expert appointed by the arbitral tribunal may participate in the proceedings. This is contemplated by Article 29:

“1. Unless otherwise agreed by the parties, the arbitral tribunal may:

– appoint one or more experts for clarification of the issues arising in the course of dispute settlement which require special knowledge;

– instruct a party to submit to the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his/her inspection.

2.Unless otherwise agreed by the parties, a candidacy of an expert as well as the issues to be clarified in the course of expert examination shall be determined by the arbitral tribunal taking into account of the opinions of the parties.

3.Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his/her written or oral opinion, participate in a hearing where the parties have the opportunity to put questions to him/her in connection with the conducted expert examination and produced expert opinion.”

3.2. The Law of the Russian federation dated July 7, 1993 No. 5338-1 “On International Commercial Arbitration” provides for the possibility to produce as evidence expert opinions and opinions of specialists on expert opinions (“counterexpert” opinions).

According to para. 1 Article 23, “The parties may submit together with their statements all documents they consider to be relevant to the case, or may make a reference to the documents or other evidence they will submit in future”.

From the tenor of para.3 Article 24 it follows that the parties may produce in the course of arbitration proceedings the opinions prepared at the initiative of a party. Para.3 Article 24 sets forth: «All expert opinions, or other documents which constitute evidence and on which the arbitral tribunal may rely in making its decision shall be communicated to the parties”.

Along with the experts engaged by the parties in the proceedings, an expert appointed by the arbitral tribunal may participate in the proceedings. This is contemplated by Article 26:

“1. Unless otherwise agreed by the parties, the arbitral tribunal may:

– appoint one or more experts to give his/her opinion on specific issues to be determined by the arbitral tribunal;

– instruct a party to submit to the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his/her inspection.

2.Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his/her written or oral opinion, participate in a hearing where the parties have the opportunity to put questions to him/her and to present expert witnesses in order to testify on the points at issue.”

Para.2 Article 26 provides for the participation of the parties’ experts in the proceedings. Each party may engage a specialist (“counterexpert”) to “testify on the points at issue”.

3.3. The Rules of Arbitration of International Commercial Disputes of the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation (the ICAC at the RF CCI) (Appendix No. 2 to Order No. 6 of the Chamber of Commerce and Industry of the Russian Federation dated 11.01.2017 provides for production of expert opinions as evidence.

The Rules of Arbitration of International Commercial Disputes (hereinafter referred to as the Rules) shall apply to disputes referred to the International Commercial Arbitration Court at the Chamber of Commerce and Industry of the Russian Federation which arise out of contractual or other civil law relationships connected with foreign trade and other kinds of international business.

According to para. 1 clause 29 of the Rules, “each party shall be required to prove the circumstances relied on to support its claims or defenses.”

The Rules do not contain a list of evidence.

The parties may produce as evidence the expert opinions prepared at their own initiative. Para.2 Clause 10 of the Rules provides that: “All documents submitted by either of the parties to the Secretariat shall be transmitted by it to the other party, unless these documents have been transmitted by such party to the other party during the arbitral proceedings. Any reports prepared by experts or other documents classified as evidence on which an arbitral award may be based shall be transmitted to the parties as well.”

The arbitral tribunal may, at its own initiative, order expert examination. Para.1 clause 29 of the Rules set forth that “the arbitral tribunal may, in its discretion, order inspection by an expert and request evidence to be produced by third parties, and also call and hear witnesses”.

Experts may be heard in the course of oral hearings in the case. Para.3 Clause 21 of the Rules reads as follows: “Unless the parties agree otherwise, the arbitral tribunal may, subject to approval by the Executive Secretary of the ICAC and in case of need, hold hearings and other sessions involving deliberations of arbitrators, examination of witnesses, experts or the parties as well as inspection of goods, other property or documents in a place other than Moscow.” Para.6 Clause 30 of the Rules sets forth that “the arbitral tribunal may hear witnesses or experts by means of videoconferencing.”

3.4. Arbitration Rules of the International Court of Arbitration of the International Chamber of Commerce (the “ICC”) provides for production of experts opinions as evidence.

In line with para. 3 Article 25 of the Arbitration Rules of the International Court of Arbitration of the International Chamber of Commerce, the arbitral tribunal may decide to hear witnesses, experts appointed by the parties or any other person, in the presence of the parties, or in their absence provided they have been duly summoned.

Para. 4 Article 25 of the Arbitration Rules provides for that the arbitral tribunal, after having consulted the parties, may appoint one or more experts, define their terms of reference and receive their reports. At the request of a party, the parties shall be given the opportunity to question at a hearing any such expert.

3.5. Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce provides for production of expert opinions as evidence.

Participation of experts in arbitration proceedings is provided for by Article 33 of the Arbitration Rules of the Arbitration Institute of the Stockholm Chamber of Commerce. In advance of any hearing, the Arbitral Tribunal may order the parties to identify each expert they intend to call and specify the circumstances intended to be proved with the help of an expert. The testimony of party-appointed experts may be submitted in the form of statements signed by such experts. Any expert, on whose testimony a party seeks to rely, shall attend a hearing for examination, unless otherwise agreed by the parties.

Article 34 of the Arbitration Rules provides for a possibility of appointment of an expert by the Arbitral Tribunal. According to this Article, after consulting the parties, the Arbitral Tribunal may appoint one or more experts to report to it on specific issues. Upon receipt of a report from an expert, the Arbitral Tribunal shall send a copy of the report to the parties and shall give the parties an opportunity to submit written comments on the report. Upon the request of a party, the parties shall be given an opportunity to examine any expert appointed by the Arbitral Tribunal at a hearing.

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