15 MAI 2007. - An Act to amend the Judicial Code with respect to expertise and to restore section 509quater of the Criminal Code (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
CHAPTER I^er. - General provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
CHAPTER II. - Amendments to the Judicial Code
Art. 2. An article 875bis, as follows, is included in the Judicial Code:
"Art. 875bis. The judge limits the choice of the instructional measure to what is sufficient for the solution of the dispute, preferring the simplest, fastest and least expensive measure. »
Art. 3. II is inserted in Part IV, Book II, Title III, Chapter VIII, Section VI of the same Code, a subsection l^re which will contain section 962, the title of which reads as follows:
"Subsection 1^re. General provision. »
Art. 4. Section 962 of the same Code is supplemented by paragraph 2, which reads as follows:
"There is no obligation to follow the expert's opinion if his conviction opposes it. »
Art. 5. The Code repeals:
1st articles 963 and 964;
2° Article 965, amended by the law of 24 June 1970.
Art. 6. It is inserted in the same section of the same Code a sub-section 2 that will contain sections 966 to 971 unchanged, the title of which is as follows:
"Subsection 2. Discussing experts. »
Art. 7. Section 969 of the same Code is replaced by the following provision:
"No recusal may be proposed after the installation meeting, or, if not, after the expert's work begins, unless the cause of the recusal was subsequently disclosed to the party. »
Art. 8. It is inserted in the same section of the same Code a subsection 3 that will contain sections 972 to 983, the title of which is as follows:
"Subsection 3. The course of expertise. »
Art. 9. Section 972 of the same Code is replaced by the following provision:
§ 1^er. The decision that orders the expertise includes at least:
- the indication of the circumstances that make necessary the expertise and possible designation of several experts;
- indication of the identity of the designated expert or expert;
- a specific description of the expert's mission;
- indication of the date of the installation meeting, unless the judge waives it, with the agreement of the parties.
Notification of this decision shall be made by the Registrar in accordance with Article 973, § 2, paragraph 3.
After this notification, the expert has eight days to:
- refuse the mission, if he wishes, by duly motivating his decision;
- if no installation meeting has been planned: communicate the place, day and time of the beginning of its work.
The expert advises the parties by registered letter to the position and the judge and counsel by missive letter.
§ 2. The installation meeting takes place in the board's chamber, before the judge who ordered the expertise or who is responsible for the control of it.
The parties appear before the judge. The expert may be contacted by telephone or by any other means of telecommunications, unless one of the parties or the judge requests his personal appearance before the latter.
The decision taken after the installation meeting specifies:
- the possible adaptation of the mission;
- the place, day and time of the subsequent work of the expert;
- the need for the expert to appeal to technical advisors or not;
- the estimation of the overall cost of the expertise or, at the very least, the method of calculating the costs and fees of the expert and possible technical advisers;
- the amount of the provision;
- the reasonable part of the provision that may be released to the expert;
- the period in which the parties may make their submissions in respect of the expert's preliminary notice;
- the deadline for filing the final report.
In the absence of an installation meeting, the judge may include the statements referred to in the ordering decision!
The notification of this decision by the Registrar shall take place in accordance with Article 973, § 2, paragraph 3. »
Art. 10. In the same Code, an article 972bis is inserted:
"Art. 972bis. § 1^er. Parties are required to collaborate with the expertise. If the judge fails, the judge may draw any consequences that he deems appropriate.
At the latest at the installation meeting and, if not, at the beginning of the work, the parties shall provide the expert with an inventory record of all relevant documents.
§ 2. The summons for further work shall be in accordance with Article 972, § 1^er, last paragraph, unless the expert has been authorized by the parties and the boards to use another method of summoning.
If all parties or their advice request a postponement, the expert is required to consent to it. In any other case, the judge may refuse or consent to the deferral and notify the judge of the deferral.
The expert draws a report on the meetings he organizes. He sends a copy to the judge, the parties and the boards by letter, and, where appropriate, to the parties that have failed by registered letter. »
Art. 11. Section 973 of the same Code is replaced by the following provision:
Art. 973. § 1^er. The judge who has ordained the expertise, or the judge designated for this purpose, follows the conduct of the expertise and, in particular, ensures that the time limits and its contradictory character are respected.
The judge may, for emergency reasons, reduce the time limits provided for in this subsection or provide experts with certain types of summons.
The experts carry out their mission under the control of the judge, who may at any time, on their own motion or at the request of the parties, attend the operations. The Clerk shall inform the experts, the parties and their counsel by letter, and, where appropriate, the parties that have failed by judicial fold.
§ 2. All disputes relating to the expertise that arise in the course of the mission, between the parties or between the parties and the experts, including the request for the replacement of the experts and any challenges relating to the extension or extension of the mission, are resolved by the judge.
To this end, the parties and experts may address the judge by letter of missive, motivated. The judge immediately orders the summons of the parties and experts.
Within five days, the Clerk shall notify the parties and their counsel by letter missive, as well as the expert and, where appropriate, the parties that have failed by judicial fold.
The board's room appearance takes place in the month following the summons. The judge decides, by reason, within eight days.
The Registrar shall notify the decision in accordance with paragraph 3. In the event of a replacement request, the decision is notified, as the case may be, to the confirmed expert, or to the unloaded expert and the new expert designated by judicial fold. »
Art. 12. Section 974 of the same Code is replaced by the following provision:
"Art. 974. § 1^er. If the deadline for filing the final report is more than six months, the expert shall submit an interim report every six months on the status of his work to the judge, the parties and the boards. This state of progress mentions:
- work already done;
- work carried out since the last interim report;
- the work that remains to be carried out.
§ 2. Only the judge may extend the deadline for filing the final report. For this purpose, the expert may address the judge by indicating why the deadline should be extended.
The judge refuses to extend the period when he considers that an extension is not reasonably justified. It motivates this decision.
§ 3. In the event that the time limit is exceeded and in the absence of an extension request within the time limits, the judge shall order the summons, in accordance with Article 973, § 2. »
Art. 13. Section 975 of the same Code is repealed.
Art. 14. Section 976 of the same Code is replaced by the following provision:
"Art. 976. At the end of his work, the expert sends for reading to the judge, the parties and their counsel, his findings, to which he already attached a preliminary notice. In the absence of an installation meeting, the expert sets a reasonable time frame, given the nature of the dispute, in which the parties must make their submissions.
The expert receives comments from the parties and their technical advisors before the expiry of this period. The expert does not take into account any comments he receives lately. These observations may be waived by the judge on an ex officio basis. »
Art. 15. Section 977 of the same Code is replaced by the following provision:
"Art. 977. § 1^er. The expert tries to reconcile the parties.
If the parties reconcile, the expert finds that his expertise has become irrelevant. The parties may act in accordance with Article 1043.
§ 2. The notice of conciliation, the parts and notes of the parties and a detailed statement of fees and fees of the expert shall be deposited in the registry.
On the day of filing the Conciliation Notice, the expert sends, by registered letter to the position, a copy of the Conciliation Finding and a detailed statement of costs and fees to the parties, and by missive letter to their counsel. »
Art. 16. Section 978 of the same Code is replaced by the following provision:
"Art. 978. § 1^er. The final report is dated and relates the presence of the parties during the work, their verbal statements and their requisitions. It also contains the records and notes submitted by the parties to the experts; it can only reproduce them to the extent that it is necessary for discussion.
The report is, barely invalid, signed by the expert.
The signature of the expert is, barely null and void, preceded by the oath so designed:
"I swear to have fulfilled my mission in honour and conscience, with accuracy and probity. »;
or
"Ik zweer dat ik mijn opdracht in eer en geweten, nauwgezet en eerlijk vervuld heb. »;
or
"Ich schwöre, dass ich den mir erteilten Auftrag auf Ehre und Gewissen, genau und erlich erfüllt habe. »
§ 2. The minutes of the report, the documents and notes of the parties and a detailed statement of fees and fees of the expert are filed at the Registry.
On the day the report was filed, the expert sends, by registered letter to the post, a copy of the report and a detailed statement of fees and expenses to the parties, and by miscellaneous letter to their advice. »
Art. 17. Section 979 of the same Code, as amended by the laws of 27 May 1974 and 3 August 1992, is replaced as follows:
"Art. 979. § 1^er. If a party makes the request, the judge may replace the expert who does not properly fulfil his or her mission.
If the parties make the application jointly, the judge must replace the expert.
If no party makes the request, the judge may order the summons referred to in Article 973, § 2.
The judge shall justify his replacement decision and immediately appoint a new expert.
§ 2. The replaced expert has a fifteen-day period to file the documents and notes of the parties to the registry and a detailed fee and fee statement.
On the day of filing, the expert sends to the parties, by registered letter to the position, and to the parties' advice, by simple letter, a copy of the statement of fees and detailed fees. »
Art. 18. Section 980 of the same Code is replaced by the following provision:
"Art. 980. When the expertise is ordered by default in respect of one or more parties, the parties may take part without further formalities at any stage of the expertise, either by being present or by being represented, or by communicating written comments.
In such cases, the expertise and the procedure continue contradictoryly with respect to these parties, which cannot oppose previous decisions and actions. »
Art. 19. Section 981 of the same Code is replaced by the following provision:
"Art. 981. The expertise is unopposable to the party called for forced intervention after the expert's preliminary opinion is sent, unless that party renounces by means of innocence.
A third party intervenor may not require that work already done be resumed in his presence, unless he justifies his interest in them. "
Art. 20. Section 982 of the same Code, as amended by the Act of 26 June 1992, is replaced by the following provision:
"Art. 982. The judge only designates one expert unless he considers it necessary to designate several experts.
Experts prepare a single report; they form a single opinion to the plurality of voices, but in the case of different opinions they indicate the motives of the various opinions. The report is signed by all judicial experts.
The detailed fees and fees are collective if there are several judicial experts for the same cause. It clearly indicates the assessment of each individual. »
Art. 21. Section 983 of the same Code, as amended by the Act of 21 April 1982, is replaced by the following provision:
"Art. 983. The clerk sends, by simple letter, a copy of the final judgment to the expert. »
Art. 22. It is inserted in the same seciton of the same Code a sub-section 4 containing articles 984 to 986, the title of which is as follows:
"Subsection 4. The limited intervention of experts. »
Art. 23. Section 984 of the same Code is replaced by the following provision:
"Art. 984. If the judge does not find sufficient clarifications in the report, he or she may order either the completion of complementary expertise by the same expert or the completion of a new expertise by another expert.
The new expert may request the expert previously appointed the information he deems useful. »
Art. 24. Section 985 of the same Code, as amended by the Act of 27 May 1974, is replaced by the following provision:
"Art. 985. The judge may hear the expert at the hearing. This one can help with documents during the hearing.
The expert shall, before being heard, take the oath in the following terms:
"I swear to report in honour and conscience, with accuracy and probity. »;
or
"Ik zweer dat ik in eer en geweten, nauwgezet en eerlijk verslag zal doen. »;
or
"Ich schwöre mein Gutachten ouf Ehre und Gewissen, genau und ehrlich abzugeben. »
The expert's statements are made in a record signed by the judge, by the clerk and by him even after reading and commenting if applicable.
At the request of the parties, the judge may hear their technical advisers.
The judge shall immediately charge the costs and fees of the expert at the bottom of the record and shall be issued enforceable against the party or parties that he or she designates and in the proportion that he or she determines. In the final decision, these amounts will be taxed as court fees. »
Art. 25. Section 986 of the same Code is replaced by the following provision:
"Art. 986. The judge may designate an expert to be present at an instruction that he or she ordered to provide technical explanations or to report orally to the hearing set for that purpose. The judge may also enjoin the expert to produce during the hearing of the relevant documents for the solution of the dispute.
The expert can help with documents.
The expert verbally sworn in the following terms:
"I swear to give all the explanations that will be asked, in honor and conscience, with accuracy and probity. »;
or:
"Ik zweer dat ik alle gevraagde toelichting in eer en geweten, nauwgezet en eerlijk zal verstrekken. »;
or:
"Ich schwöre, alle geforderten Erläuterungen auf Ehre und Gewissen, genau und ehrlich zu geben. »
The expert's statements are issued.
The judge shall immediately charge the costs and fees of the expert at the bottom of the record and shall be issued enforceable against the party or parties that he or she designates and in the proportion that he or she determines. In the final decision, these amounts will be taxed as court fees. "
Art. 26. It is inserted in the same section of the same Code a sub-section 5 comprising sections 987 to 991bis, the title of which is as follows:
"Subsection 5. Expert fees and fees. »
Art. 27. Section 987 of the same Code, as amended by the Act of 27 May 1984, is replaced by the following provision:
"Art. 987. The judge may set out the provision that each party is required to record to the Registry or to the credit facility agreed upon by the parties, as well as the time limit within which it must meet that obligation. The judge may not impose this obligation on the party who, pursuant to section 1017, cannot be sentenced to the costs.
The judge may determine the reasonable part of the provision to be released in order to cover the costs of the expert.
As soon as the provision is recorded, the Registry or the credit facility shall inform the expert by missive letter.
Where applicable, the registry pays the released party to the expert. »
Art. 28. Section 988 of the same Code is replaced by the following provision:
"Art. 988. If the expert considers that the provision or the party released from it is not sufficient, the judge may request an additional provision or release a greater portion of it.
Another release is also possible to cover a reasonable portion of the fees for work already performed.
The judge refuses the additional summons or the release of a greater part of the provision if he considers that it is not reasonably justified. It motivates this decision. »
Art. 29. Section 989 of the same Code is replaced by the following provision:
"Art. 989. If a party fails to make a summons within the time limit, the judge may draw the conclusions that it considers appropriate. »
Art. 30. Section 990 of the same Code, as amended by the Act of 24 June 1970, is replaced by the following provision:
"Art. 990. The statement of fees and detailed fees of the expertise mentions separately:
- the hourly rate;
- travel expenses;
- the residence fee;
- general costs;
- amounts paid to third parties;
- the imputation of the amounts released.
If the expert does not file a statement of fees and fees, the parties may request the judge to proceed with the taxation. »
Art. 31. Section 991 of the same Code is replaced by the following provision:
"Art. 991. § 1^er. If, within fifteen days of the filing of the detailed statement to the Registry, the parties have informed, in writing, the judge that they agree on the amount of fees and fees claimed by the experts, the experts are taxed by the judge at the bottom of the minute of the statement and are granted enforceable in accordance with the agreement between the parties or against the party or the party, as provided for the consignation.
§ 2. If, within the period referred to in § 1^er, the parties have not given their agreement, the expert or the parties may, in accordance with Article 973, § 2, apply to the judge for the purpose of taxing fees and fees.
The judge shall determine the amount of costs and fees without prejudice to any damages.
In particular, it takes into account the rigour with which the work has been carried out, the timeliness and the quality of the work provided.
The judge shall declare the enforceable judgment against the party(s), as provided for in the summons of the provision.
§ 3. In the final decision, these amounts will be taxed as court fees. »
Art. 32. An article 991bis, as follows, is inserted in the same Code:
"Art. 991bis. After the final taxation, the provision shall be withdrawn by the experts to the amount due to them. The relic is refunded by the Registrar to the parties on an ex officio basis on the amounts that they were required to record and that they actually recorded.
Experts can only receive direct payment after their statement of fees and fees has been permanently taxed and provided that the provision is insufficient. »
CHAPTER III. - Amendment of the Criminal Code
Art. 33. Section 509quater of the Criminal Code inserted by the Act of 9 March 1989 and repealed by the Act of 4 December 1990, is reinstated in the following wording:
"Art. 509quater. Will be punished by imprisonment from eight days to three months and a fine of two hundred euros to fifteen hundred euros, or only one of these penalties, the expert who, knowing that a direct payment is not allowed, accepts it despite all of a party to the cause. »
CHAPTER IV. - Transitional provisions
Art. 34. This Act applies to the expertise ordered after this Act comes into force.
However, the following provisions already apply to current expertise at the time this Act comes into force:
- the new article 875bis;
- the new article 972bis, § 1^erParagraph 1^er;
- the new article 973, § 1^er;
- the new article 974, § 1^er;
- the new article 991, § 2, paragraphs 2 and 3.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 15 May 2007.
ALBERT
By the King:
Deputy Prime Minister and Minister of Justice,
Ms. L. ONKELINX
Seal of the state seal:
The Minister of Justice,
Ms. L. ONKELINX
____
Note
(1) Session 2005-2006.
House of Representatives:
Parliamentary documents:
51-2540:
No. 1: Bill.
No. 2: Amendments.
No. 3: Opinion of the State Council.
n^bones 4-6: Amendments.
Number 7: Report.
No. 8: Text adopted by the commission.
No. 9: Text adopted in plenary and transmitted to the Senate.
Full report: 12 April 2007.
Senate:
Parliamentary documents:
3-2390:
No. 1: Project not referred to by the Senate.