Comments on the proposal to amend the law on the national register of Experts and Translators for Belgium
(15 February 2017 – on behalf of the members of the Justice Commission of the Belgian Parliament)


By Dr. Yves Adriaenssens,  CNEJ - NCGD President
and Etienne Claes, CNEJ - NCGD
  Vice-President                                  
EEEI members


The Nationaal College van Gerechtelijke Deskundigen (NCGD - CNEJ) {National College of Judicial Experts of Belgium}
acting in association with with : l’Association Belge Francophone du Dommage Corporel asbl (Belgain Association for the Assessment of Bodily Harm - ABEFRADOC), De Belgische Nederlandstalige Vereniging van Medische Experten vzw. ( BENEVERMEDEX), La Société de Médecine Dentaire asbl ( SMD), De West-Vlaamse Vereniging Geneesheren Deskundigen (WVVGD), 

have been long time demanding party for the recognition of a status of judicial expert, as well as the establishment of a national register of experts.

In this respect, we expect a legislation which takes care of the interests of all stakeholders of the expertise - obviously including the experts - and, unlike the outcome of previous proposals on this subject, would grant a better justice.

The expert must act as neutral observer, collector of data and technical advisor to the judge, acting in compliance with her/his own professional ethics and deontological rules as Doctor, Architect, Accountant, Dentist, …

One can distinguish three “families” of experts:

  • Experts with proven academic background and peer recognition, who have to comply  with ethical  rules set by law  (in Belgium, this applies for Doctors, Dentists, Architects, Accountants and Auditors)
  • Experts with a proven academic background, but who are not submitted to a code of ethics set by law (e.g. : civil engineers)
  • Various other kind of experts, with widely variable academic backgrounds, who are not submitted to ethic rules set by law.  

The Law has to be drafted bearing in mind these various categories of experts, in order to:

-  manage overriding rules, and/or conflict with existing ethics rules, as well as conflicts with codes of conducts to which experts are already submitted. Rules set for Health, or for Economic purposes, may sometimes conflict with rules set by Justice; 

 -  to enable the judiciary system to make sure every expert acts on the basis of accepted ethical rules, specifically in matters of independence and impartiality. Independence and impartiality are fundamental requirements, accepted as such by all stakeholders.

There is some reluctance from Courts to designate experts who also regularly intervene as technical advisors to insurance companies or to victims of bodily damage.

It is obvious that one cannot be judge and party in one specific case. Therefore, the oath given by an expert for each of her reports should guarantee his impartiality and independence and should be accepted by Courts as such.

The law provides the expert with an 8 days delay prior to confirm acceptance of any mission.

The formulation of the oath leaves no doubt for interpretation by the expert.

In our opinion, there ought not to be an absolute incompatibility between an intervention as a judicial expert and the accomplishment of another mission, in a separated context as technical expert to an insurance company or to private parties.

We would like to emphasize the fact that a Ministerial decree of 2007 did recognize “insurance medicine and medical expertise” as an official specialty for Doctors of medicine. Government thus recognized the specificity and complexity of the profession. The law actually emphasizes the need for experts to build experience, on behalf of all stakeholders of the expertise process.

Second, and very important for the creation of a register of court experts, medical expertise, which it defines as "an independent medical who conducts Research at the request of a judicial authority or one or more parties with the intention  to evaluate several of the following parameters :
    a) body injury;
    b) assessment of the need for and duration of a medical therapy;
    c) assessment of the application of the medical criteria under social law, civil law or insurance policy."
 
CNEJ-NCGD advocates transparency. Therefore, we recommend a system of 'disclosures', communication of any elements of a potential conflict of interest.

Should an ethical problem still occur then  NCGD – CNEJ proposes to intervene as a representative of the experts, as member of the acceptance commission.

The legislator must be aware of the ethical rules specific to each regulated profession and the complexities of potentially overlapping ethical rules.

We note that the draft law provides a far-reaching empowerment to the "Acceptance commission". We are convinced of the importance of such a commission. However, we are preoccupied to see that so much power will be concentrated in the hands of a commission that is not described until now. Neither the way its members will be chosen, neither the way the Acceptance commission will work have been defined yet nor described in the draft law.
 
Who will be the members of this commission? Is it the intent to have a unique commission both for Experts and for Translators when the law itself insists upon fundamental differences between both activities? We recommend to have at least an acceptance Commission for Experts and one separate Acceptance Commission for translators and interpreters. What will be the competence of the commission on the point of view of quality control?
 
Will the commission take over the role of the judge as far as the control of the expertise is concerned?
Will the members of the commission be submitted to professional secret?

The Bill also points out to diplomas. However, some fields of expertise require more than diplomas. As an example, in the field of Accounting, the law provides that both private expertise and judicial expertise can only be entrusted to Auditors and Accountants. Both the professional title of Auditor (Réviseur d’entreprises/Bedrijfsrevisor and Accountant (Accountant/Expert-comptable) are granted by Official Accounting bodies, and come on top of University degrees.

When the Ministry of Justice gathers information over the morality, work and/or know-how of the expert or candidate expert, will the expert or candidate expert be informed in order to comply with the respect of privacy?

We would like to emphasize that access to an expert individual data should be strictly regulated.

What about experts who only perform expertise on behalf of public prosecutors (eg forensic pathologists?). How should they specifically document their application renewal?

The CNEJ - NCGD is concerned about the information that the registration will request the payment of fees whereas there is no guarantee that any income will be granted to the expert.

The law should foresee a guarantee that those experts who want to keep their social status as independents would be entitled to do so, and to avoid that the register of experts would become a way to change the social status of experts. 
 
The NCGD Is concerned about the possible influx of "experts" from other Member States EU if they should only demonstrate their registration at a similar register of their country, in contrast to the strict criteria imposed on the Belgian candidate experts. We understand the need to accept experts from any country, and we hope for reciprocity. However, it needs to be understood that the minimum professional requirements should be expected for all experts.

The NCGD points out the danger of arbitrary decisions within the framework of morality tests and therefore requires the strict use of an open procedure that would grant the benefit of contradiction to the candidate or expert.

Article 8 of the draft law that says that a degree is a proof of competence. Therefore, we do not understand why the same draft law foresees that the expert should provide evidence to have attended a law education process no longer than 15 years ago when the specific topics are covered by a university degree earned by the expert.

In this sense, one could also formulate the same objection as the lack of specific training where a fifteen-year relevant experience a degree seems to replace a diploma.

 

 

COLLEGE NATIONAL DES
EXPERTS JUDICIAIRES DE
BELGIQUE ASBL

Boulevard du Jubilé, 71 b 3
1080 Bruxelles

Fax : 02/421.07.40