Criminal and Disciplinary Liability of Experts under Qatari Law (Part Two)1
(A Research Paper Presented at the Awareness and Cultural Seminar of the Qatari Association of Experts and Arbitrators)
Third: Practical Issues in Practising the Work of Experts Without Registration
As noted in Part One of this series, a person acting as an expert without registration in the Experts Roster bears criminal liability under the Law Regulating Expert Work No. 16 of 2017 ("Experts Law"). However, there are circumstances in which the person acting as an unregistered expert may not be held criminally liable.
One such circumstance is when a court or another entity specified under the Experts Law appoints an expert who is not registered in the Experts Roster at the Ministry of Justice ("Ministry"). Another circumstance is when an entity not specified under the Experts Law seeks the assistance of an unregistered expert to provide advisory expert work by issuing an independent third-party report.
To understand how these circumstances avoid triggering criminal liability, it is necessary to consider the entities before which the expert may perform expert work, and whether these entities are obligated to appoint only experts registered in the Experts Roster at the Ministry, or whether they are free to assign any expert to perform expert work in a dispute before them.
- Appointing an Unregistered Expert by Entities Specified Under the Experts Law, and the Expert's Liability Arising from Such an Appointment
(a) Entities Authorised to Appoint Experts under the Experts Law
Article 2 of the Experts Law stipulates that entities authorised to appoint an expert registered in the Experts Roster, or an expert holding an expert position at the Experts Affairs Department within the Ministry ("Department") are judicial authorities. This also applies to other entities designated by a decision of His Excellency the Minister of Justice ("Minister"), based on a ruling or order from those entities.
Additionally, Article 44 of the Experts Law states:
"In matters not specifically addressed by this law, the provisions of Chapter Eight, Book Two of the aforementioned Civil and Commercial Procedures Law, as well as Articles (95) to (99) of the aforementioned Criminal Procedure Law, shall apply to expert work."
Chapter Eight, Book Two of the Civil and Commercial Procedures Law ("CCPL") grants courts the authority to appoint experts to assist in technical matters necessary for resolving disputes. However, the CCPL does not include a requirement that experts appointed by the courts must be registered in a specific register. Rather, the selection of experts was to be made by agreement of the litigating parties. In the absence of such an agreement, the selection would be made from experts registered on the register established by the courts, which was created and regulated by Decision No. 29 of 2008 issued by His Excellency the President of the Supreme Judicial Council.2 Experts registered in this roster were considered assistants to the judiciary.
That decision stipulated that it would regulate the use of experts before courts until a specific law regulating the use of experts was issued in accordance with Article 72 of the Judicial Authority Law. The Court of Cassation affirmed this in Appeal No. 25 of 2016, dated 15/03/2016.
Based on the language of the decision, it was understood that once a law regulating experts was issued, its provisions would apply to experts appointed by the courts, based on a well-established legal principle that specific legal provisions addressing a particular topic take precedence over general legal provisions. Therefore, it seemed the courts should adhere to the provisions of the Experts Law when appointing experts.
However, in practice, civil and commercial courts, before the enactment of the Investment and Trade Court Law (the significance of which is discussed below), did appoint experts who were not registered in the Experts Roster. This created legal complications for those assigned to perform expert work without being registered in the Experts Roster once the Experts Law took effect.
Similarly, Articles 95 to 99 of the Criminal Procedure Law grant the Public Prosecution the authority to appoint experts for investigations. However, these articles did not specify a specific roster from which experts were to be selected. Accordingly, the Public Prosecution exercised its discretion in selecting experts without regard to the Experts Roster. In practice, the Public Prosecution has appointed experts from the State Audit Bureau and other bodies outside those registered in the Experts Roster.
Moreover, Article 99 of the Criminal Procedure Law also grants the accused or the victim the right to seek assistance from a consulting expert, without requiring that such an expert be selected from the Experts Roster.3
Accordingly, the appointment of experts by the courts and the Public Prosecution under the CCPL and the Criminal Procedure Law does not require experts to be registered on the Experts Roster.
Following the enactment of Law No. 21 of 2021 establishing the Investment and Trade Court, Article 26 of that law explicitly allows parties to submit an expert report issued by an independent expert, without requiring the expert to be on the Experts Roster.
Additionally, Article 27 of the same law allows the court, when appointing an expert, to approve the parties' prior agreement on a specific expert or to appoint another expert, again without requiring the expert to be registered on the Experts Roster.
Accordingly, under the Investment and Trade Court Law, courts may appoint any expert, whether on the Experts Roster or not, provided the parties agree or the court deems it appropriate.
In conclusion, entities specified under the Experts Law to which an expert may provide expertise are permitted to appoint experts who are not registered in the Experts Roster. This raises the question of the liability of such experts when appointed without having been registered on the Experts Roster.
(b) Liability of Unregistered Experts Appointed by Entities Specified Under the Experts Law
In practice, courts have appointed experts who were not registered in the Experts Roster of the Ministry. Some of these experts were referred for criminal prosecution on charges of violating the prohibition set forth in the Experts Law by practising without registration.
However, criminal courts have ruled otherwise. In Appeal No. 64 of 2024 (Criminal Orders), dated 14/03/2024, the court held that such an expert did not commit a crime. It reasoned that, in this context, the expert held the status of a public officer performing expert work, and that the court's order appointing the expert constitutes a directive from a superior authority, which the expert, as a subordinate, is obligated to obey. Accordingly, the expert was acquitted.
The judgment relied on Article 48 of the Penal Code (Law No. 11 of 2004), which states:
"There shall be no crime if the act was committed by a public officer in either of the following two cases: 1- Execution of an order from a superior which he is obliged to obey, or which he believes he is obliged to obey. 2- Execution of laws, or in the bona fide belief that such execution falls within his jurisdiction. In all cases, the public officer must prove that he committed the act only after verifying and ensuring its legality, that he believed in its lawfulness, and that such belief was based on reasonable grounds."
Furthermore, Article 3 of the Penal Code states:
"For the application of the provisions of this law, the following terms shall have the meanings assigned to them: Public officer: Persons entrusted with exercising public authority, employees, and workers in ministries, other governmental agencies, public authorities, and public institutions. The following shall be deemed equivalent to public officers: Arbitrators, experts, bankruptcy administrators, liquidators, and judicial custodians; chairpersons and members of boards of directors, managers, and all other employees of private associations, institutions, and companies, if any ministry, governmental body, or public institution has a share in them; and anyone performing work related to public service pursuant to an assignment issued by a public officer".
Generally, a subordinate public officer will not be relieved of liability for committing a crime simply because they were following the instructions of a superior. However, according to Article 48 of the Penal Code, a subordinate may not be liable where they were acting in good faith, verified the legality of the order, believed in the lawfulness of the act performed in compliance with their superior's order, and that such belief was based on reasonable grounds.
Based on the above, it was evident to the court in this case that the incident attributed to the expert lacked sufficient proof against him. This is because the expert work performed in this case was carried out based on an assignment from the court, as per the interlocutory judgment issued in the case. The expert was named as part of the panel of experts tasked with the assignment expressly stated in the operative part of that judgment.
Judicial decisions — regardless of their legal basis — generally create a sense of mandatory compliance among those subject to them upon issuance, necessitating their execution. Accordingly, since the interlocutory judgment explicitly named the expert, who consequently believed in the binding obligation to carry out the assigned task ordered by the court, and considering that a judge, in essence, is a public officer entrusted with taking the necessary steps to ascertain the truth and achieve justice, and has the authority to appoint whomever he deems necessary to assist in resolving the case before him, the expert was not held liable pursuant to Article 48 of the Penal Code.
The reason for this conclusion is that in these circumstances the expert is deemed a public officer assigned by the judiciary, with the judge acting as the expert's superior. Naturally, the subordinate — the accused expert — would feel obligated to fulfil the assignment since the judicial ruling explicitly named him. Thus, based on applying the foregoing legal principles to the relevant legal provisions, it is evident that the conditions stipulated in Article 48 of the Penal Code for exempting the accused expert's act from criminal liability had been satisfied. Therefore, the court ruled to acquit the accused expert of the charges against him.
Accordingly, the judiciary — and likewise the Public Prosecution — may appoint any expert who is not registered to practice expert work under the Experts Law. If such an assignment is issued to an unregistered expert, he will carry out the task in the capacity of a public officer, who is obliged to obey his superior, whether a judge or a public prosecutor. Hence, no crime shall be attributed to the expert in such cases under the provisions of Article 48 of the Penal Code.
- Liability of Unregistered Experts Appointed by Entities Not Specified in the Experts Law
Since, according to the Experts Law, the entities authorised to appoint experts are judicial bodies or any other entities designated by a decision of the Minister, a question arises regarding the liability of an expert when appointed by entities other than those specified in the Experts Law.
This situation has become increasingly common, particularly after the issuance of the Investment and Trade Court Law, which, as previously mentioned, explicitly grants litigants the right to engage an unregistered consulting expert to provide an independent expert report. It also allows the court to appoint experts who are not required to be registered in the Experts Roster.
Litigants often use independent expert reports to support their claims in disputes. This has raised the question of whether such an independent expert who is not registered in the Experts Roster is subject to the criminal penalty stipulated in Article 39 of the Experts Law.
In our view, a consulting expert is not subject to the prohibition set forth in Article 39 of the Experts Law, as this prohibition applies specifically to the practice of expert work as defined under that law. The Experts Law defines "expert work" as a technical function performed by an expert — including translation services — based on a judgment or order from a judicial body, or at the request of entities designated by a decision of the Minister. Therefore, when the assignment comes from entities other than those specified in the Experts Law, the work does not fall within the Experts Law's definition of "expert work".
In such cases, the work of the non-registered expert is considered merely a consulting opinion provided to the party who engaged the consulting expert, involving research and the issuance of a technical advisory opinion concerning a specific dispute, addressed exclusively to the party who commissioned it.
However, if such consulting work is performed by an unregistered expert who is not a Qatari national, it must be based on a valid work permit for this consulting activity in accordance with the Labour Law and Residency Law. Otherwise, it may be considered as the unauthorised practice of business under the Commercial Companies Law, Foreign Investment Law, and the laws regulating freelance professions. In such cases, the relevant authorities could deem the proceeds of such activities as unlawful, potentially constituting the offence of money laundering.
Accordingly, licensed engineering consultancy offices, auditing and accounting firms, and other entities authorised to provide technical consultancy services may issue consulting expert reports, as may engineers licensed to work within such firms.
For example, an engineering consultancy office that is not registered in the Experts Roster may issue a consulting expert report concerning a particular project at the request of one of the project's parties. In this scenario, in our view, no crime exists, as the expert is not providing services to an entity specified by the Experts Law, and thus the act does not constitute prohibited expert work.
Footnotes
1. Part One of this article may be found here: https://qatarlaw.com/article/criminal-and-disciplinary-liability-of-experts-under-qatari-law-part-one
2. Article 334 (paragraphs 1 and 2) of the Civil and Commercial Procedures Law stipulates: "If the parties agree to appoint one expert or a panel of three experts, the court shall approve their agreement. In the absence of such agreement, the court shall appoint the experts it deems suitable for the task."
3. Article 99 of the Criminal Procedure Law stipulates:
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