Recusation to an expert

Recently, in everyday usage, the foreign word “life hack”[1] has started to be used very often, with the help of which we characterize various cunning things, tricks, the knowledge and skills in various fields of our life, through which we realize the tasks set, simplify the achievement of goals or we simply facilitate the implementation of the household needs.

The legal field is not an exception, and the lawyers use various “life hacks” in it as well.

For example, creditors file statements of claims on collecting debts shortly before the end of the statute of limitations to recover maximum interest for the use of other people's money or a penalty from the debtor. The defendants, who are the domain name administrators, take advantage of the inexperience of the plaintiffs being the trademark holders, who have not filed a statement to the court for undertaking the interim measures against the domain name, and transfer the domain to the offshore company, which is registered on the territory of the Caribbean countries, after which the court has to notify the new defendant during years.

Of course, there are also the “life hacks,” which are sometimes on the edge of the allowable, and some of them fall in fact under the norms of the criminal legislation.

But in this article, we are not going to instruct on the illegal tricks encountered in the profession of lawyers, firstly, due to the fact that we are against the “dirty” techniques, and we are accustomed to play honestly and openly at a “judicial tilting-yard,” and secondly, so as to be not accused of promoting the criminal acts.

It would seem, what “life hack” can be hidden in the declaration for recusation to an expert? After all, this is just one of the tools of procedural behavior of the persons involved in the case, which are stipulated by the procedural codes.

Indeed, this is so, but, it is exactly the knowledge of the proceedings and the ability to apply it in the practice, to file this or that petition in due time are a key to a successful outcome of the case, and, consequently, to an achievement of the goal.

So, before proceeding to the practice, I suggest that we should briefly dwell on the theory.

Since the legal approaches regarding the declaration on recusation to the expert are alike, both in the Arbitration Procedural Code of the Russian Federation and in the Civil Procedural Code of the Russian Federation, I would suggest that we should dwell on the first of the aforementioned ones, and using it as an example to consider the grounds for declaring and satisfying recusation to the expert.

In accordance with Part 3 of Article 82 of the Arbitration Procedural Code of the Russian Federation, the persons involved in the case are entitled to file a petition for attracting the persons indicated by them as the experts or for carrying out an examination in a concrete expert institution, to declare recusation to the expert; to file a petition for entering the additional matters put before the expert into the decision on the appointment of the examination; to give explanations to the expert; to get acquainted with the expert's opinion or with the notification on the impossibility of providing the opinion; to file a petition for carrying out an additional or repeated examination.

As it follows from Part 1 of Article 23 of the Arbitration Procedural Code of the Russian Federation, the expert cannot be involved in the consideration of the case and he/she is subject to be recused on the grounds stipulated by Article 21 of this Code.

Article 21 of the Arbitration Procedural Code of the Russian Federation stipulates that the relevant person may be recused, if:

1) in the previous consideration of this case, he/she has been involved in it as a judge and his repeated involvement in the consideration of the case in accordance with the requirements of this Code is inadmissible;

2) in the previous consideration of this case, he/she has been involved in it as a prosecutor, a judge assistant, a secretary of the judicial session, a representative, an expert, a specialist, a translator or a witness;

3) in the previous consideration of this case, he/she has been involved in it as a judge of the foreign court, the arbitral tribunal or the arbitration court;

4) he/she is a relative of the person involved in the case, or of his representative;

5) he/she is personally, directly or indirectly, interested in an outcome of the case or there are other circumstances that may cause doubt in his impartiality;

6) he/she is or has been previously in official or other dependence on the person involved in the case, or his representative;

7) he/she has made public statements or has given an assessment of the considered case on the merits.

Besides, in accordance with unnumbered paragraph 2 of Part 1 of Article 23 of the Arbitration Procedural Code of the Russian Federation, one of the grounds for recusation to the expert in the arbitration process is carrying out an audit or a check by him/her, which materials have become a reason for appealing to the arbitration court or which are used at the consideration of the case.

According to the legal position of the Constitutional Court of the Russian Federation of 17.07.2012 No. 1409-O, Article 24 of the Arbitration Procedural Code of the Russian Federation and Article 18 of the Federal Law “On the State Judicial and Examination Activities in the Russian Federation,” which establish the expert’s obligation to declare self-recusation, as well as mandatory recusation to the expert from being involved in carrying out a judicial examination and the need for an immediate cessation of carrying out it, if it has been entrusted to him/her, subject to the fact that there are the grounds stipulated by the procedural law, including if he/she is interested in the outcome of the case, are aimed at expanding the guarantees of the judicial defense of the rights and the legitimate interests of the participants in the civil proceedings. The provisions of Article 24 of the Arbitration Procedural Code of the Russian Federation do not stipulate an arbitrary application: if there are the grounds established by Articles 21 and 23 of the indicated Code, the consideration of the matter for recusation to the expert is not a right, but an obligation of the arbitration court, which is considering some specific case.

You may ask, where is the “life hack” here? Here is a list of the grounds for declaring recusation to the expert. As soon as one of them is found - just declare recusation.

But, as the famous character of Arthur Conan Doyle – Sherlock Holmes said:“The most serious conclusions are sometimes based on mere trifles.”

Therefore, I suggest that we should refer to the Article of the Code, which states on the stage, when recusation to the expert can be declared.

By virtue of Part 2 of Article 24 of the Arbitration Procedural Code of the Russian Federation, recusation shall be motivated and declared before the beginning of the consideration of the case on the merits. In the course of the consideration of the case, declaring self-recusation or recusation is allowed only in the case, if the ground for self-recusation or recusation has become known to the person declaring self-recusation or recusation, after the beginning of the consideration of the case on the merits.

The similar legal position is set out in Resolution of the Eighth Arbitration Court of Appeal of 24.09.2018 in case No. A75-294/2017.

However, it is stated in Paragraph 18 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 04.04.2014 No. 23 “On Some Matters of the Practice of the Application by the Arbitration Courts of the Examination Legislation” that after suspension of the proceedings in connection with the appointment of the examination, the court resolves the matters for the change of the expert, for involving another expert to carry out the examination, for recusation to the expert, for providing the expert with additional materials, for setting additional matters before the expert, for cancelling a permission to the person involved in the case to be present at carrying out the examination, for extending the period of carrying out the examination without resuming the proceedings. At the same time, the court shall appoint a court session, and it notifies the persons involved in the case and the expert about the time and the place.

Thus, the matter for recusation to the expert shall be subject to the consideration after the adoption by the court of a decision on the appointment of the examination of the case, but before the beginning of the consideration of the case on the merits and, in the exceptional cases, it is allowed, if the ground for recusation has become known to the person declaring recusation after the beginning of the consideration of the case on the merits.

At the same time, it often happens that the opponents disclose the candidacies of the experts before the court and the persons involved in the case, only directly in the court session, in which the application for the appointment of the examination is considered.

The judges, overloaded with cases, do not want to postpone the court session to familiarize the persons involved in the case with the represented candidates of the experts, in order to provide an opportunity to declare their objections, in connection with which in these cases, if there are the grounds, which are sufficient for that, one can use his/her right to declare recusation to the expert after the appointment of the examination by the court.

The same has happened in the case[2], which our company is dealing with. The defendants represented the candidacies of the experts directly in the court session, we declared the oral objections to those candidates, the candidates on the part of the plaintiff were declared, whom the defendants were familiar with beforehand and the written objections to them were submitted.

In addition, the fact is interesting that the representative of the defendants, who obviously was not familiar with the provisions of the Arbitration Procedural Code of the Russian Federation and the positions of the higher courts, tried to declare recusation to the experts proposed by us before satisfying the petition for the appointment of the examination by the court. And the court pointed out to him that to declare recusation was possible only after the appointment of the expert by the court. 

The court, having heard the arguments of the persons involved in the case, chose as an expert one of the candidates proposed by the defendants and instructed him to carry out the examination.

However, the lawyers of our company carried out promptly an analysis for the presence of the grounds for recusation to the expert, and it turned out that the expert was in official dependence on the representative of the defendant, who had proposed that expert’s candidacy.

The said arguments supported by the proofs were declared in the court as recusation to the expert, on what basis the court came to an opinion that the declaration on recusation to the expert should subject to be satisfied as the circumstances indicated in the declaration might raise doubts regarding the expert’s impartiality.

Thus, the knowledge of the stages of the court proceedings, as well as the ability to apply them in the practice, supported by diligence of our lawyers’ team led to the fact that the expert, who could prepare a prejudiced opinion, was suspend from carrying out the examination.