Key Benefits:
The Prime Minister,
On the report of the Seal Guard, Minister of Justice,
Considering the Code of Criminal Procedure, including article 157;
Considering the code of the judicial organization, including articles R. 121-7, R. 225-2 and R. 225-3;
Considering the new Code of Civil Procedure;
Having regard to Act No. 71-498 of 29 June 1971 amended on judicial experts;
Considering Act No. 2004-130 of 11 February 2004 reforming the status of certain legal and legal professions, judicial experts, industrial property councils and public auction experts;
Having regard to Decree No. 85-1389 of 27 December 1985 on judicial administrators, judicial agents for the liquidation of enterprises and experts in corporate diagnostics, including articles 83 and 84;
The State Council (inland section) heard,
Decrete:
Each year, a national list and a court of appeal list are drawn up on which designated experts in both civil and criminal matters are registered.
These lists are prepared in accordance with a nomenclature established by Seal Guard Order, Minister of Justice.
A natural person may only be registered or re-registered on a list of experts if it meets the following conditions:
1° Not having been the author of facts contrary to honour, probity and good morals;
2° Not having been the author of facts that gave rise to a disciplinary or administrative penalty of dismissal, removal, revocation, withdrawal of approval or authorization;
3° Not having been struck by personal bankruptcy or another sanction under Title II of Book VI of the Commercial Code;
4° Exercise or have exercised a profession or activity in relation to its specialty for a sufficient time;
5° Exercising or exercising this profession or activity in conditions conferring sufficient qualification;
6° Do not engage in any activity incompatible with the independence required for the exercise of judicial missions of expertise;
7° Subject to the provisions of Article 18, be under the age of seventy years;
8° For candidates for registration on a list drawn up by a court of appeal, exercise their principal professional activity in the jurisdiction of this court or, for those who no longer have a professional activity, have their residence.
In order to register a legal person on a list of experts, it must be justified:
1° That the leaders fulfil the conditions laid down in 1°, 2°, 3° and 6° of Article 2;
2° That the legal person has been active for a period of time and under conditions that have given him sufficient qualification in relation to the speciality in which it requests its registration;
3° That this activity is not incompatible with the independence necessary for the exercise of judicial missions of expertise;
4° That the legal person has the appropriate technical and qualified personnel;
5° For registration on a list prepared by a court of appeal, that it has its head office, branch or technical establishment in relation to its specialty, within the jurisdiction of the court of appeal.
In addition, there is the production of the statutes and the indication of the name of each person holding a fraction of at least 10% of the social capital.
A legal person who would give himself or herself as a principal object or as an accessory the execution of expert missions cannot be admitted to a list of experts.
However, the provisions of the preceding paragraph do not preclude the inclusion in a list of experts of a legal person whose purpose is to carry out forensic expertise or examinations, research and analysis of genetic imprint identification in accordance with the provisions of Decree No. 97-109 of 6 February 1997 on the conditions of registration of persons authorized to conduct genetic imprint identifications in the context of a judicial procedure.
Any change in the situation of natural or legal persons who have sought or obtained their registration on a list, with regard to the conditions set out in articles 2 and 3, must be brought promptly to the attention of the public prosecutor.
No natural or legal person may be registered on several appeal court lists.
Requests for initial registration on a list prepared by a court of appeal for a period of two years are sent before 1 March of each year to the public prosecutor near the court of large instance in which the candidate exercises his or her professional activity or has his or her residence.
The request includes any relevant information, including:
1° Indication of the heading(s) and of the specialties(s) in which the inscription is requested;
2° Indication of the applicant's titles or diplomas, of his scientific, technical and professional work, of the various functions he has performed and of the nature of all the professional activities he carries out with, if any, the indication of the name and address of his employers;
3° Justification of the applicant's qualification in his specialty;
4° Where applicable, indicate the means and facilities available to the applicant.
The public prosecutor initiates the initial application for registration. He verifies that the candidate meets the requirements. He collects all information on his merits.
During the second week of September, the prosecutor of the Republic forwards applications to the Attorney General who seizes the first president of the Court of Appeal for examination by the General Assembly of Judges of the Court of Appeal.
The General Assembly of Judges of the Court of Appeal lists the experts during the first half of November.
When the court has more than three chambers, the general assembly may be held in a restricted commission as provided for in article R. 761-46 of the code of the judicial organization.
When the court has more than five rooms, the general assembly may meet in a restricted formation where all rooms of the court are represented.
High-instance courts, trade tribunals and courts of law of the court of appeal are represented at the general assembly, even if it sits on a restricted or restricted board, by one of their members who participate in the examination of applications with advisory voices. However, the first president may exempt certain jurisdictions from being represented, provided that at least one member of each of the categories of jurisdiction sits at the General Assembly.
The first president shall designate one or more judges of the seat to serve as rapporteur.
The General Assembly pronounces itself after hearing the judge responsible for the report and the Public Prosecutor's Office.
The initial inscription on the list drawn up by the General Assembly of the Court of Appeal, its restricted commission or its limited training is made in the particular section provided for in Article 2 of the law of 29 June 1971 referred to above.
Requests for re-registration for a period of five years shall be sent before 1 March of each year to the Attorney General of the Republic to the High Court in which the candidate carries out his or her professional activity or has his or her residence.
The application includes all documents to evaluate:
1° The experience gained by the candidate, both in his specialty and in the practice of the expert function since his last registration;
2° The knowledge he has acquired of the guiding principles of the trial and the procedural rules applicable to the training measures entrusted to a technician and the training he has taken in these areas.
The prosecutor of the Republic initiates the application for re-registration. He transmits the application to the commission established in Article 2 II of the Act of 29 June 1971 referred to above on 1 May.
The commission mentioned in the previous article is composed of:
1° A magistrate of the court of appeal appointed by the first president, president;
2° A judge of the General Prosecutor ' s Office appointed by the Attorney General, Rapporteur;
3° Six magistrates from the headquarters of the courts of large instance in the court of appeal appointed by the first president in the light of the proposals of the presidents of these courts. In addition, the president may designate, at the request of the rapporteur, a magistrate from the seat of an unrepresented court of large instance;
4° Two prosecutors of the public prosecutors of the courts of large instance in the court of appeal designated by the Attorney General in the light of the proposals of the prosecutors of the Republic near these courts;
5° A member of the commercial courts of the jurisdiction of the court of appeal designated by the first president in the light of the proposals of the presidents of these courts;
6° A member of the courts of appeal appointed by the first president in the light of the proposals of the presidents of these courts;
7° Five experts on the list in different branches of the nomenclature for at least five years and jointly appointed by the first president and the Attorney General after notice of the companies of judicial experts or of the union of judicial experts companies or, where applicable, of any representative body.
Members are designated for a three-year term, renewable once. When, at least six months before the expiry of his or her term of office, one of the members ceases to serve or is no longer on the list of experts for any cause, he or she is replaced under the same conditions for the remaining term of office.
Members of the committee serving as experts cannot know of their re-registration on the list.
The secretariat of the commission is provided by a magistrate of the Attorney General ' s Office.
The Commission is informed, at the due diligence of the Attorney General, of the final disciplinary penalties imposed against the experts listed.
The Commission examines the situation of each candidate in relation to the evaluation criteria set out in the second paragraph of section 2 of the above-mentioned Act of 29 June 1971. She ensures that the candidate complies with his or her obligations and that he or she fulfils them with due diligence. When the candidate is a legal entity, the commission considers, inter alia, the experience, knowledge and behaviour of the technicians who intervene on behalf of that legal entity.
It may hear or make the candidate heard by one of its members.
The Commission issues a reasoned opinion on the application.
In the event of the equal sharing of votes, the president has a dominant voice.
The Commission shall forward, before 1 September, nominations with a reasoned notice to the Attorney General who seizes the first president of the Court of Appeal for examination by the General Assembly of Judges of the Court of Appeal or its restricted commission or its limited training as defined in Article 8.
Judges of the Court of Appeal members of the Commission do not participate in the deliberation on the re-registration of experts.
The first president shall designate one or more judges of the seat to serve as rapporteur.
The rapporteur may hear the candidate.
The General Assembly of Judges of the Court of Appeal shall take action after hearing the judge responsible for the report and the Public Prosecutor's Office.
The notice rendered by the commission is attached to the decision to re-registrate or refuse to re-registrate on the list.
An expert who decides to exercise his or her principal activity or, if he or she has no professional activity, to set his or her residence within the jurisdiction of a court of appeal different from that to which he or she is registered, may apply for re-registration on the new list for a period of five years, without being subject to the initial probatory registration provided for in section 1.
The Attorney General near the Court of Appeal on the list of which the expert is registered shall transmit to the competent General Prosecutor all the information available to him to assess the personality and professional qualities of the expert.
The applicant shall, before 1 March, apply for registration or re-registration on the national list to the Attorney General near the Court of Cassation.
The Attorney General is investigating the application. It verifies that the term of registration on a list of appeals court set out in III of section 2 of the above-mentioned Act of 29 June 1971 is fulfilled on 1 January of the year following that of filing the application. He collects the advice of the first president and the Attorney General to the Court of Appeal where the person is registered and sends the applications, with his opinion, to the office of the Court of Cassation.
During the first half of December, the Court of Cassation office draws the national list, the Attorney General and the first general lawyer not sitting.
He decides on the report of one of his members, the Attorney General heard.
On an exceptional basis, the office of the Court of Cassation may include on the national list a candidate who does not meet the age requirement set out in section 2 (7°).
The expert on the national list retains the benefit of his registration on a list prepared by a court of appeal.
Registered or re-registered experts, persons whose application has not been retained, experts whose registration has not been renewed and those who have been the subject of a withdrawal decision under the conditions provided for in Article 5 of the Act of 29 June 1971 referred to above shall be notified by registered letter with a request for notice of receipt of the decision concerning them.
Decisions of registration or re-registration and refusal of registration or re-registration made by the authority responsible for the establishment of lists may result in an appeal to the Court of Cassation.
The list of experts drawn up by a court of appeal shall be made available to the public at the premises of the court's secretariat-greffe, as well as in the courts of large instance and proceedings, the courts of commerce and the courts' courts of law.
The national list is addressed to all appeals courts as well as to all courts of large instance and proceedings, courts of commerce and human rights boards. It is made available to the public at the premises of the secretariat-greffe of the Court of Cassation and in the premises of the above-mentioned courts.
Upon enrolling on a list drawn up by a court of appeal, the expert, before the court of appeal of his home, swears to assist the justice system, to carry out his mission, to report and to give his opinion in his honour and conscience.
For a legal person, the oath shall be sworn by its representative, designated for that purpose.
In the event of an impediment, the first president of the Court of Appeal may authorize the expert to take an oath in writing.
The expert shall notify each year before 1 March to the first president of the Court of Appeal and to the Attorney General near the said court or, for the person registered on the national list, to the first president of the Court of Cassation and to the Attorney General near the said court, the number of reports that he has filed during the previous year and, for each of the current jurisdictions, the date of the decision that has made him, Under the same conditions, it brings to their knowledge the trainings carried out in the past year by mentioning the organizations that provided them.
The first president of the Court of Appeal and the first president of the Court of Cassation shall bring this information to the attention, as the case may be, of the commission provided for in Article 2 of the law of 29 June 1971 referred to above or the office of the Court of Cassation on the occasion of each application for re-registration.
The control of the experts is exercised, as the case may be, either by the first president and the Attorney General near the Court of Appeal or by the first president and the Attorney General near the Court of Cassation.
Depending on the case, the Attorney General at the Court of Appeal or the Attorney General at the Court of Cassation receives the complaints and makes the necessary investigations at any time to verify that the expert complies with his or her obligations and promptly discharges them.
If he appears to him that a registered expert has contravened the laws and regulations relating to his profession or his expert mission, or has been lacking in probity or honour, even for foreign events to the missions entrusted to him, he collects his explanations. Where applicable, it prosecutes the expert against the authority that made the registration in disciplinary training. It ensures and monitors disciplinary action.
The expert prosecuted is required to appear, as the case may be, by the Attorney General at the Court of Appeal or by the Attorney General at the Court of Cassation.
The summons is sent by registered letter with a request for notice of receipt at least 15 days before the date fixed for the appearance. It sets out the facts against the expert.
The summoned expert may take note of his file with the General Prosecutor's Secretariat, as the case may be, at the Court of Appeal or the Court of Cassation.
The Disciplinary Commission may be provided with any relevant information or documents. It may conduct any hearings and, if necessary, delegate one of its members to that end.
The debates are public. However, disciplinary training may decide that they will take place or will continue in the board's room at the request of the interested party or whether it must result from their advertising an infringement of the privacy of privacy or if it arises from disorders of nature to disturb their proper conduct; mention is made in the decision.
The Disciplinary Commission shall decide, by reason of decision, after hearing the Public Prosecutor's Office, the expert prosecuted and, where applicable, his lawyer.
The decision is notified to the expert prosecuted, by registered letter with a request for notice of receipt, and to the Public Prosecutor's Office. The notification indicates the time and terms of the appeal against the decision.
The appeal is, as the case may be, brought before the Court of Appeal or the Court of Cassation.
It is formed within one month by declaration to the secretariat-greffe or by registered letter with request for a notice of receipt addressed to the secretariat-greffe.
The deadline is short, with respect to the Attorney General, on the day the decision was pronounced and, with respect to the expert, on the day the decision was notified.
The delisting of an expert from the national list takes full right his delisting from the list drawn up by a court of appeal. The delisting of an expert from a list drawn up by a court of appeal takes his deletion from the national list.
An shipment of the de-listing decision is, as the case may be, addressed to the Attorney General near the Court of Appeal or to the Attorney General near the Court of Cassation.
Where the urgency warrants, the first president of the Court of Appeal or the Court of Cassation, if it is an expert on the national list, or the magistrate to whom they delegate for that purpose, may, at the request of the Attorney General, suspend an expert on an interim basis when the latter is subject to criminal or disciplinary proceedings, after placing the individual in a position to provide his or her explanations.
The first president of the Court of Appeal or the Court of Cassation may, at the request of the Attorney General, or at the request of the person concerned, terminate the suspension.
The provisional suspension shall cease as soon as the criminal proceedings are terminated or the disciplinary proceedings are completed.
The interim suspension measure is notified to the expert pursued by registered letter with a request for notice of receipt. The notification indicates the time and terms of the appeal against the decision.
The appeal shall, as the case may be, be brought before the Court of Appeal or the Court of Cassation. It shall be trained, educated and judged in accordance with the provisions of articles 24 and following of this decree.
At the diligence of the Attorney General near the Court of Appeal on the list of which the expert is registered, the disciplinary penalty and the decision of provisional suspension are brought to the attention of the judges of the court. If the expert is registered on the national list, the Attorney General near the Court of Cassation shall bring the decision to the attention of the Attorney General near the Courts of Appeal which shall inform the magistrates of the case.
The end of the provisional suspension is brought to the attention of the judges under the same conditions.
Judicial experts may, at their request, be admitted to honorariat after reaching the age of sixty-five years and have frozen for fifteen years on a court of appeal list or for ten years on the national list.
Prior to 31 December of each year, the lists of judicial experts are, at the diligence of the Attorney General, transmitted to the National Medical Accidents Commission provided for in Article L. 1142-10 of the Public Health Code.
The Attorney General at the Court of Cassation or the Attorney General at the Court of Appeal, as the case may be, shall promptly inform the National Medical Accidents Commission of any decision of withdrawal, delisting or provisional suspension of an expert on the national list of medical accident experts.
Section R. 121-7 of the Judicial Organization Code is replaced by the following:
"Art. R. 121-7. - The Court of Cassation hears appeals against the decisions taken by the authorities responsible for the establishment of the lists of experts under the conditions laid down in articles 20, 29 and 31 of Decree No. 2004-1464 of 23 December 2004. »
Section R. 225-2 of the Judicial Organization Code is replaced by the following:
"Art. R. 225-2. - The General Assembly of the Judges of the Headquarters lists the experts of the Court of Appeal under the conditions laid down in articles 6 to 16 of Decree No. 2004-1464 of 23 December 2004. »
Section R. 225-3 of the Judicial Organization Code is replaced by the following:
"Art. R. 225-3. - The first Chamber of the Court of Appeal has appeals against decisions taken by the authorities responsible for the establishment of the lists under the conditions laid down in articles 29 and 31 of Decree No. 2004-1464 of 23 December 2004. »
Experts on a Court of Appeal list as at 31 December 2004 may apply for re-registration on a list for a period of five years. The procedure provided for in articles 6 to 9 shall not apply to them.
Applications for re-registration are submitted and reviewed each year, the first five years from 1 January 2005, by branch of the nomenclature of experts and by fifth in alphabetical order from a letter drawn by lot by the Chairman of the commission established in II of Article 2 of the law of 29 June 1971 referred to above.
The provisions of title II and articles 33 and 34 may be amended by decree.
Are repealed:
1° Decree No. 74-1184 of 31 December 1974 on judicial experts;
2° Articles 83 and 84 of the decree of 27 December 1985 referred to above.
The security guard, Minister of Justice, is responsible for the execution of this decree, which will be published in the Official Journal of the French Republic.
Done in Paris, December 23, 2004.
Jean-Pierre Raffarin
By the Prime Minister:
The Seal Guard, Minister of Justice,
Dominica Perben
