Republic of Latvia Cabinet Regulation No. 782 Adopted 13 December 2016

The Procedures for Initiating and Examining a Disciplinary Matter of Forensic Experts

Issued pursuant to
Section 20, Paragraph two and Section 22,
Paragraph three of the Law on Forensic Experts

I. General Provisions

1. The Regulation prescribes the procedures for initiating and examining a disciplinary matter of a forensic expert.

2. An infringement (act or failure to act) committed deliberately (intentionally) or through negligence by a forensic expert that is referred to in Section 20 of the Law on Forensic Experts and connected with the performance of duties of a forensic expert shall be considered a disciplinary infringement.

3. A disciplinary infringement shall be recognised as committed:

3.1. deliberately (intentionally) if the forensic expert who has committed it has been aware of the unlawful nature of his or her action, has foreseen its harmful consequences, and has desired or knowingly allowed such consequences to result;

3.2. through negligence if the forensic expert who has committed it has foreseen the possible harmful consequences of his or her action, but has relied on them not resulting or being prevented, or has not foreseen that such consequences may result, although in the actual circumstances they should have been foreseen and the forensic expert could have foreseen them.

II. Initiating a Disciplinary Matter

4. Prior to initiating a disciplinary matter, the Council of Forensic Experts (hereinafter - the Council) shall, within one month after receipt of a proposal from a judge or a person directing the proceedings, or a complaint of a person, or after commencement of the relevant activities in relation to the possible initiation of a disciplinary matter, carry out an exhaustive preliminary examination of the materials received and may request a written explanation from a forensic expert.

5. The forensic expert shall provide a written explanation within 15 days from the date of receipt of a request for the explanation.

6. The Council is entitled to request from the person directing the proceedings, court, State authorities, other institutions and persons an additional information which is necessary for deciding the issue on initiation of a disciplinary matter.

7. Upon assessment of information at its disposal, the Council shall take one of the following decisions:

7.1. to initiate a disciplinary matter against the forensic expert;

7.2. to refuse to initiate a disciplinary matter against the forensic expert.

8. The Council shall send the materials at its disposal to the competent authority for examination if the Council establishes that the examination of a disciplinary matter is not within its competence.

9. If the Council establishes that the forensic expert has provided an incorrect expert opinion, but the cases of disciplinary liability referred to in Section 20, Paragraph one of the Law on Forensic Experts are not evident and there are no grounds for initiating a disciplinary matter, the Council shall notify the forensic expert thereof and shall inform the institution in which the forensic expert is employed.

10. The following shall be indicated in a decision on initiating a disciplinary matter:

10.1. the given name, surname, place of operation of the forensic expert, and also the speciality of the forensic expert and the number of the forensic expert certificate;

10.2. the activities (obtaining of information, requesting of explanations) performed within the preliminary examination prior to taking a decision on initiating a disciplinary matter;

10.3. the circumstances (information in documents, explanations of a forensic expert, circumstances for committing a possible disciplinary infringement and other information that is relevant to the disciplinary matter) established during the preliminary examination;

10.4. the person to whom harm has been inflicted, if any;

10.5. the legal provision which provides for a disciplinary liability for this infringement;

10.6. the composition of a commission for examining a disciplinary matter (hereinafter - the Commission) approved at the Council session.

11. The Council shall submit the materials of the disciplinary matter and a decision on initiating a disciplinary matter to the Commission for examination not later than on the next day after taking thereof.

12. If a disciplinary matter is initiated against a forensic medicine expert or forensic psychiatry expert regarding a possible disciplinary infringement referred to in Section 20, Paragraph one, Clause 2 of the Law on Forensic Experts, the Council:

12.1. shall send copies of materials of the disciplinary matter and decision on initiating a disciplinary matter to the Health Inspectorate for the provision of opinion regarding the conformity of the opinion of a forensic expert with the method and the validity thereof. The Health Inspectorate shall provide an opinion within a month from the day of receipt of the copies of materials of the disciplinary matter;

12.2. not later than on the next working day after receipt of the opinion of Health Inspectorate, shall submit it to the Commission for examination.

13. Failure to provide the opinion referred to in Paragraph 12.1 of this Regulation shall not serve as an obstacle for initiating a disciplinary matter.

III. Examining a Disciplinary Matter

14. The disciplinary matter shall be examined within two months from the day of initiating a disciplinary matter. The period for examination of a disciplinary matter shall not include the period in which the forensic expert had a temporary incapacity or was on leave or official travel.

15. The Commission shall, not later than five working days prior to the session, notify the Council, forensic expert against whom the disciplinary matter is initiated, persons to be invited referred to in Section 21, Paragraphs two, three, and four of the Law on Forensic Experts, and the person to whom harm has been inflicted, if any, of the date and time of the Commission session.

16. The Commission may request from the forensic expert against whom the disciplinary matter is initiated, person to whom harm has been inflicted, if any, or another stakeholder additional documents and materials regarding the circumstances established within a disciplinary matter, and also information from the competent authority regarding the professional activity of a forensic medicine expert or forensic psychiatry expert if it is necessary for examining a disciplinary matter.

17. The Commission sessions shall be closed.

18. The quorum of the Commission shall be not less than one half of the members present at a session.

19. The chairperson of the Commission shall open the session and announce the composition of the Commission.

20. The session of disciplinary matter examination shall begin with a report of the chairperson of the Commission. Afterwards the Commission shall listen to the requests and explanations of the forensic expert against whom the disciplinary matter has been initiated, and also requests and explanations of other persons invited to the session, and shall examine the case materials and other documents.

21. The forensic expert against whom the disciplinary matter has been initiated, and a person to whom harm has been inflicted, if any, and also other persons invited to the session shall, upon request of the chairperson of the Commission, leave the premises where the Commission session is held.

22. In examining a disciplinary matter, the nature of the disciplinary matter and the harm caused thereby, and also a form of guilt in accordance with Paragraph 3 of this Regulation shall be taken into account.

23. Liability for a disciplinary infringement shall be mitigated by a forensic expert's voluntary confession regarding committing the disciplinary infringement. Other circumstances may also be recognised as mitigating circumstances.

24. If the forensic expert against whom the disciplinary matter has been initiated, or a person to whom harm has been inflicted, if any, fails to arrive to the Commission session without a substantiated reason, the Commission shall examine the disciplinary matter on the basis of the circumstances established within a disciplinary matter and the information at the disposal thereof. If the Commission recognises the reason for the absence of the abovementioned persons as justified, the Commission shall indicate the day of the next session and notify about it in accordance with the procedures laid down in Paragraph 15 of this Regulation.

25. The Commission sessions shall be recorded in the minutes by the Council secretary (hereinafter - the secretary). The following shall be indicated in the minutes of a Commission session:

25.1. the date and place of the Commission session;

25.2. the number of the minutes;

25.3. the members of the Commission present at the session and whether the Commission has a quorum;

25.4. the taker of the minutes of the Commission session;

25.5. the persons invited to the Commission session, if any;

25.6. the requests and explanations provided in the Commission session, if any;

25.7. the circumstances established at the Commission session;

25.8. the opinions of the Commission members and the persons who were invited in an advisory capacity;

25.9. the opinion of the Commission;

25.10. other information related to the examination of a disciplinary matter.

26. The secretary shall prepare the minutes of the session within three working days after the Commission session. The minutes of the Commission session shall be signed by the chairperson and secretary of the Commission.

27. By open vote by a simple majority vote of those present, the Commission shall support one of the following proposals:

27.1. to terminate the disciplinary matter;

27.2. to terminate the disciplinary matter with a reprimand to the forensic expert;

27.3. to impose on the forensic expert one of the disciplinary sanctions referred to in Section 22, Paragraph four of the Law on Forensic Experts.

28. The disciplinary sanction referred to in Section 22, Paragraph four, Clause 2 of the Law on Forensic Experts shall be applied if substantial harm has been caused due to the disciplinary infringement. The following shall be considered as substantial harm:

28.1. property loss the amount of which at the time of committing a disciplinary infringement exceeds the total of five minimum monthly wages specified in the State at that time;

28.2. personal harm that cannot be prevented by preventing the direct consequences of the relevant disciplinary infringement. It shall be considered as substantial personal harm;

28.3. harm to significant State or public interests that cannot be prevented by preventing the direct consequences of the relevant disciplinary infringement.

29. In the event of a tied vote, the chairperson of the Commission shall cast the deciding vote. If any member of the Commission has an individual opinion, it shall be indicated in the minutes of the Commission session and an opinion. Member of the Commission may not refrain from voting.

30. The Commission shall decide on a proposal to terminate a disciplinary matter if it does not establish a content of the disciplinary infringement or the period laid down in Section 20, Paragraph four of the Law on Forensic Experts has set in.

31. The following shall be indicated in an opinion:

31.1. the date of the opinion;

31.2. the date and number of the Council decision by which a disciplinary matter is initiated;

31.3. the given name, surname, and speciality of the forensic expert against whom the disciplinary matter has been initiated;

31.4. the legal provision which provides for a disciplinary liability for this infringement;

31.5. the activities performed by the Commission;

31.6. the facts and materials established by the Commission wherein the established circumstances have been recorded;

31.7. the person to whom harm has been inflicted, if any;

31.8. the analysis of the circumstances established during the disciplinary matter;

31.9. the conclusions on whether the disciplinary infringement has been committed by indicating legal provisions and circumstances which substantiate the conclusions made;

31.10. the conclusions on whether the forensic expert against whom the disciplinary matter has been initiated shall be held liable for committing the disciplinary infringement, and a form of guilt of the forensic expert in accordance with Paragraph 3 of this Regulation;

31.11. the evaluation of explanations provided by a forensic expert;

31.12. the individual opinion of the Commission member, if such has been expressed;

31.13. the Commission proposal in accordance with Paragraph 27 of this Regulation.

32. The secretary shall prepare the opinion within five working days after the Commission session in which the proposal referred to in Paragraph 27 of this Regulation has been supported. The opinion shall be signed by Commission members that were present at the Commission session.

33. The Commission shall submit to the Council the opinion together with the materials of a disciplinary matter not later than on the next working day after signing thereof.

34. The Council shall, within 14 days from the day of receipt of the Commission opinion and materials of the disciplinary matter, prepare a decision on imposition of a disciplinary sanction or termination of a disciplinary matter.

35. If the Council does not agree with the Commission opinion in the part regarding the applicable sanction expressed in the proposal, it shall, in addition to information referred to in Paragraph 31 of this Regulation, indicate in the decision the arguments.

36. If the Council does not agree with the proposal to terminate the disciplinary matter expressed in the Commission opinion, and also if procedural infringements during the preparation of opinion have been established, the Council shall transfer the disciplinary matter to the Commission for repeated examination thereof.

37. The Commission shall, within 15 working days after taking of the decision regarding repeated transfer of the disciplinary matter to the Commission, examine the disciplinary matter in accordance with the procedures laid down in this Regulation.

38. Only one disciplinary sanction may be imposed upon a forensic expert for each disciplinary infringement committed.

39. The Council shall notify the addressees of the taken decisions.

40. A copy of the decision to initiate a disciplinary matter and a copy of the decision to impose a disciplinary sanction or to terminate the disciplinary matter shall be additionally sent to the institution in which the forensic expert works.

41. Materials of the disciplinary matter and the Council decision regarding imposing of a sanction shall be information of limited accessibility.

IV. Registering and Storing of Materials of Disciplinary Matter

42. Materials of the disciplinary matter shall be registered and stored by the Council in accordance with the procedures laid down in the laws and regulations.

43. A copy of the decision with the attestation of a forensic expert regarding receipt of the relevant decision or an attestation regarding sending of a registered postal item issued by the post shall be attached to the materials of the disciplinary matter.

Prime Minister Māris Kučinskis

Minister for Justice Dzintars Rasnačs

 

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Translation © 2017 Valsts valodas centrs (State Language Centre)