New test proffesional article
21 January 2021
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Article 335.1 of the Code of Civil Procedure (Law 1/2000, January 7th, of Civil Procedure) refers to the figure of the expert and establishes that: When scientific, artistic, technical or practical knowledge are necessary to assess relevant facts or circumstances in the matter or acquire certainty about them, the parties may contribute to the process with the opinion of experts who have the corresponding knowledge or request, in the cases provided in this law, that an opinion is issued by an expert appointed by the court.
Thus, an expert's opinion is a document in which an expert answers one or more questions or gives his professional opinion on issues raised by the judge or the parties. This opinion is intended to help a person who, lacking the necessary technical knowledge, cannot answer such questions himself, or wishes to present the document as evidence. The document should be written with the reader in mind, presenting the conclusions in a reasoned and understandable way for a non-expert.
There are also the studies and investigations used in private matters to search for evidence and arguments that serve one of the parties in discussion to decant the discrepancy in their favor.
In the scope of Computer Engineering, it is the research study oriented to obtaining a computer proof of application in court so that it can be used by a judge to decide on the guilt or innocence of one of the parties.
An expert report can be requested by a judicial establishment, as part of a process; for example, if the judge must take into account facts whose interpretation requires computer skills. Within a judicial process it can also be requested by the parties in dispute.
There are also private expert reports, which can be requested by other entities or particulars; for example, someone may request an expert opinion precisely to assess whether or not it is convenient for them to go to court for something.
Contact us using our CONTACT form. We will provide you with all the information you need free of charge and send you a detailed quotation with no obligation.
You can consult our CATALOG OF SERVICES to see our areas of specialization, without prejudice to being able to address other matters or provide guidance on their possible resolution.
Sometimes our customers not only want to prove the existence of a criminal act but also want to recover lost information.
The computer expert is a highly qualified professional, endowed with specialized knowledge in Computer Engineering and legally recognized in all areas. His main task is to provide information and / or well-founded opinion to the courts, on controversial facts that are the subject of his expert report, providing technical knowledge that the judge lacks to be able to pass judgment in a fair and reasoned manner.
The computer expert's job is to perform a forensic analysis. The forensic analysis comprises a series of stages designed to ensure the evidences found, in such a way as to guarantee its validity. The most important stages are the following:
Secure the scene: Its objective is to carry out or request the performance of all the necessary actions to prevent the evidence from being altered.
Identify digital evidences: The devices and systems to be analysed should be identified and the evidence, to be collected for further analysis, should be identified.
Obtain and preserve digital evidences: It consists of capturing digital evidences and taking forensic images, preserving the chain of custody of the digital evidence. This is a critical phase due to the possibility of mistakenly modifying some of the digital evidence. An error of this style could invalidate the evidence in a possible judicial process.
Analysis of the intervened digital evidences: It involves applying a set of scientific and analytical techniques on the preserved media in order to determine or infer beyond any doubt that certain behaviors took place. Through the aforementioned conducts, it will be possible to determine whether or not the fact under investigation took place. It is usually helpful to know the background and the current situation, in order to establish the correct investigative strategy to be followed to investigate an event.
Present your computer expert report to the court: Once the forensic analysis has been completed, an expert report must be drafted with reasoned conclusions and justification of the work system used. The report must be clear and concise so that it can be easily understood by a Court.
Ratification in oral trial: In case of being required, the computer expert will go to court to ratify his computer expert opinion and submit to the interrogation of the parties.
According to article 340 of the Civil Procedure Law, a computer expert must have an official qualification in line with the subject matter of the report, with the following university degrees being understood as official degrees.:
Official Master's Degree in Computer Engineering.
Graduate in Computer Engineering, obtained in accordance with the Resolution of June 8th, 2009 of the General Secretariat of Universities Published in the BOE of August 4th, 2009.
Computer Engineering.
Technical Engineer in Computer Management or Technical Engineer in Computer Systems, obtained in accordance with the provisions of Royal Decrees 1460/1990 and 1461/1990, of October 26th, respectively.
Degree in computer science.
Diploma in Computer Science, approved by Royal Decree 1954/1994, of September 30th.
Computer Science Higher Degree Module. In this case, the PT module must be directly related to the subject matter of the opinion.
Equivalent foreign title duly approved by the competent authority, without prejudice to what results from the application of European Union regulations.
If a computer expert does not have an official qualification accrediting him as such, his investigations may not be considered valid for the favorable resolution of a dispute. This must be taken into consideration when hiring a party expert.
In the case of judicially appointed experts, they must be appointed by a judge or court, with the knowledge of the parties involved. Therefore, if a competent authority has not authorized the computer expert, the performance of his work and his entire investigation cannot be considered valid because it lacks official approval.
When evidence derived from computer analysis has been obtained from systems not implemented in the light of specific regulations, its questioning is unavoidable.
The requirements to be a computer science judicial expert and to be able to act legally before a court of law are:
Possess an official computer science degree, that is, issued by a public institution on behalf of the King.
Have no criminal record.
In the case of higher degrees, the professional must be a member of a professional association. If this is not accredited before the Counsel of the Administration of Justice before entering the courtroom to make a statement, the professional must come with his or her degree or certified copy of the same so that it can be attested that he or she is indeed qualified.
In the case of professionals who are members of a professional association, the requirement of having an official degree has already been verified by the professional association to which they belong.
Failure to comply with these obligations may result in the expert's opinion not being admitted by the judge, thus jeopardizing his client's interests and facing the civil and criminal liabilities required by him, and he may even face prison sentences and heavy fines.
Additionally, if the expert does not have the official qualification, he/she would be incurring in a crime of professional intrusion, punishable with up to 24 months of fine and 2 years of imprisonment. It should be clarified that a university's own Master's degree is not an official degree.
If the professional does not have a degree, he/she will be able to act in court as an "expert in the matter", but not as an expert in it.
The number of computer expert opinions that are dismissed in litigation and are not considered at the time of sentencing, because they are not signed by computer experts legally qualified to do so, is increasing. The disqualification is often due to the lack of official qualifications in computer science.
If the professionals hired are not legally qualified computer experts, there exists the risk that the computer expert opinion will not be considered by the court, which could result in very serious damages. For this reason, we recommend that you demand that the computer expert hired accredits his degree of qualification beforehand and guarantees that he does not incur in any of the assumptions of recusal or disqualification.
Not every IT professional can act as a good computer expert, due to the specific attitudes required for this role. Some requirements to be a computer expert are:
Mastering the technique of preparing a computer expert report.
Lack of stage fright.
Have the skills to intervene in an oral hearing.
Possess legal knowledge beyond those of their profession.
The expert does not have to know the rules of the procedural game with the breadth and depth of a lawyer. Like these, he must act convincingly in a trial, but unlike them, the judicial computer expert must seek the material truth, not the defence at all costs of his defendant's positions.
The party computer expert is an expert that you choose and the judicially appointed expert is chosen by the court.
The advantages of choosing a party computer expert are as follows:
You can choose the professional that best suits your needs (by training and experience). If the court assigns you a computer science judicial expert, you run the risk that their training or solvency is not the most appropriate to the requirement. It is also possible that the expert does not have the necessary technical resources to carry it out with full guarantees.
You can know and negotiate fees before hiring them to avoid high financial requests. If the court assigns you a court-appointed expert, the court will request a provision of funds which, if you do not accept, will not allow you to dispose of the report or assign another expert. You may, in any case, challenge the fees requested, but it will be up to the court to decide whether they are adequate.
The lawyer may make suggestions and recommendations to the expert. He or she may also supervise the report before it is finally issued in order to clarify certain issues. If the court assigns you a court-appointed expert, the expert may not accept any intervention from the lawyer.
You will be able to better control the deadlines for submission of the report and know the status of its development. If the court assigns you a court-appointed expert, you will hardly know when the report will be delivered.
In our case, all our experts act as court experts and therefore combine the advantage of both circumstances.
A party computer expert, in addition to those of an computer judicial expert, has the following functions:
Advise the hiring party before filing the lawsuit, in order to be able to decide how likely it is that the lawsuit will be successful.
Support the party that hires him/her in order to present the technical allegations in its initial brief or to study and rebut the answer to the lawsuit.
Recommend to the party that hires him/her the proposal of the evidence that the professional considers more solid.
Assist the counsel of the party that hires him/her in the preparation of the trial and in the practice of all evidence, especially in the interrogation of other experts.
To assist the party that hires him/her when, once the judgment is known, he/she has to decide on the possibility of filing an appeal, examining the technical reasoning that may support the judgment.
Hiring collegiated computer experts supposes a series of legal guarantees of service, which non-registered professionals lack:
The fact of being a collegiate is a certification that the IT expert is duly qualified to carry out the requested work, preventing the expert opinion from being invalidated due to the lack of its author's degree.
Collegiate computer experts are subject to mandatory compliance, among others, with professional deontology, which guarantees the professional's behavior and the minimum quality of the services provided.
Collegiate computer experts have professional civil liability insurance that covers damages caused in case of contingency.
Collegiate computer experts are subject to the disciplinary control of their professional association, which can mediate in case of conflict and / or process the corresponding complaint or claim of the user.
You can request the registration of the contracted works before the professional association of the expert, which will act as guarantee and custodian of said works.
You can request a collegiate visa for the contracted works, which implies a certification of compliance with the applicable regulations, the formal correction of the same and the professional qualification of its author.
By law, in compliance with the professional ethics in force, registered computer experts are obliged to act in the following manner:
With independence in the exercise of their activity.
With dignity. He/she must act in accordance with the dignity of the professional activity, refraining from any behaviour that involves infringement or discredit. Always rendering services with irreproachable conduct, guided by responsibility and rectitude.
With integrity. He/she must assume the duty to be honest, loyal, truthful and diligent in the performance of their professional activity, and in the relationship with their clients and collaborators.
Considering the public welfare. He/she must consider safety, health and public welfare as paramount.
Under professional secrecy. Confidentiality and trust are essential characteristics of the relationships with clients and collaborators. They impose the duty of professional secrecy, seeking to keep all facts and news known by reason of any of his/her professional actions, as well as technical, economic and personal information obtained during the same, provided there is no legal justification to the contrary. This professional secrecy shall subsist even after the termination of the relationship with the client or with the person who generated it.
In the interest of the customer. In the performance of his professional activity, he will actively ensure the satisfaction of the customer's interests, provided that the interests do not conflict with the public interest and / or current legislation.
With respect for human rights. He/she shall treat with due respect all persons without distinction, complying with human rights and ensuring their protection.
With responsibility. He/she shall perform his/her work with a sense of responsibility, accepting full responsibility for the work performed, admitting his/her own mistakes without altering or distorting facts or deflecting blame.
With fellowship. He/she shall maintain relationships of respect, affection, solidarity and collaboration with other colleagues.
With prestige. He/she shall support everything that benefits and enhances the prestige of Computer Engineering and the work of computer experts, as long as it does not contradict his/her ethical duties.
Observing his/her social function. As participants in the evolution of the information society, he/she will orient his/her actions to the promotion of the same and to the service of the Society and its correct technological development.
In defence of the law. He/she shall assume the duty to comply with and ensure compliance with all applicable laws and regulations in his/her professional activity.
With prudence and adequacy in the application of instruments and techniques. He/she shall always seek the most appropriate technological solution to the needs and budget capacity of his/her clients.
Observing technical neutrality. He/she will actively avoid imposing technology or work techniques that do not correspond to the client's needs and budgetary capacity or that may collide with the public interest.
With solidity, of the objective and scientific foundation of his professional performance.
The most effective procedure is to locate the computer expert in the professional directory of the College of the Autonomous Community. Hossaín Mimón, our registered computer expert, belongs to COETIIB (Official College of Technical Engineers in Computer Science of the Balearic Islands) and CPITIA (Professional College of Technical Engineers in Computer Science of Andalusia).
The Professional Association of Technical Engineers in Computer Science of each autonomy will watch over the quality of the services rendered by the collegiate computer experts as well as the rights of the users and consumers affected by them. The College is a guarantee of the same as well as the first entity to turn to in case of discrepancies.
In a world where computer expertise is becoming increasingly important in the resolution of legal proceedings of all kinds, do not gamble with it, hire only licensed professionals.
All our computer experts are registered and legally authorized to act before the courts all over Spain.
The collegiate endorsement of computer expertise is the basic instrument for the organization of the profession of Technical Engineer in Computer Science, by means of which compliance with the general and specific rules of application in the field of computer expertise, whether administrative or technical, is verified. The ultimate purpose of the collegiate visa is to ensure that the collegiate computer expert exercises professionally according to minimum quality and safety standards, which are set by the standard for the benefit of users, the professional himself and society as a whole. Therefore, it is a function of a public nature and carried out in the general interest, supervised by a professional association created by law.
A legally valid collegiate visa is always granted by a professional college created by law. Be cautious of visas issued by associations and other organizations that have no legal validity.
The collegial endorsement of the computer expertise guarantees the identity, the qualification and the legal authorization of the computer expert who subscribes the work. It also certifies the authentication, the registration, the formal correctness of the presentation of the documents and that the applicable regulations for the computer expert work have been observed, but it does not sanction the content of the computer expert work nor its technical correctness, which is the responsibility of the computer expert who is the author of the work.
The collegiate visa gives greater rigor to the expert opinion, providing it with an added credibility recognized by the courts of justice.
The collegiate endorsement of computer expertise is not a mere administrative stamp nor is it intended to be another link in the bureaucratic chain, but rather it seeks to provide service guarantees to the recipient and a minimum level of quality in the work.
The process of granting the collegiate visa has two clearly differentiated parts:
Administrative certification: The Professional Association of Technical Engineers in Computer Science certifies the status of qualified professional of the computer expert author of the work, as well as his or her professional qualification.
Professional certification: Another chartered computer expert examines and certifies the formal correctness of the computer expertise and compliance with the applicable regulations.
Only in the event that both the professional and administrative processes are correct, is the collegiate approval granted.
Obtaining the collegiate endorsement guarantees:
The recognition that the computer expert is a registered Technical Engineer in Computer Science, that he/she is legally qualified, and that he/she is not disqualified for professional practice.
The defence of the intellectual property of the work or labor.
A reasonable protection against the usurpation of the personality of the computer expert author of the work, that is to say, a recognition that the signature corresponds to the chartered Technical Engineer in Computer Science author of the work.
That the computer expertise is formally complete, in the sense that it includes the minimum content necessary for its purpose, and that it complies with the applicable regulations in force.
That the computer expert author of the work has taken into account for its elaboration the applicable legal provisions in each and every one of its phases.
The existence of a public law corporation that can mediate in case of conflict with the chartered computer expert author of the work.
From we will carry out all the necessary procedures to obtain the collegiate visa for the computer expertise that we deliver, if required.
The cost of this procedure is regulated by the Professional Association of Technical Engineers in Computer Science and usually ranges between 50 and 100 Euros.
Yes, the computer forensic expert must know and respect the fundamental rights of the parties during his work. On many occasions the professional work of the expert may collide with the fundamental rights of the affected parties or third parties, which may not only cause the professional a moral and ethical dilemma, but also the unlawfulness of the digital evidence intercepted and its evidentiary nullity, in addition to the corresponding civil and criminal liabilities that may be imputed to him/her.
Our professional firm sends in all cases a confidentiality agreement to the client at the beginning of the process. In this document we commit ourselves to use the information to which we have access only for the realization of the expert report. In this document we also include the fulfilment of the protection of personal data according to the current legislation.
Our company safeguards all documentation with the same rigorousness, from explicit images of crimes to the least transcendent commercial document.
All the information we receive from you is properly stored and is only accessible by the expert in charge of analysing it and by the expert in charge of this professional firm.
When there are expert reports made by security forces (Guardia Civil, National Police, Mossos d'Esquadra, Ertzaintza, Local Police, etc.), our experts act in the same way as in the rest of the cases. We analyze all the documentation and especially the police report, assessing both the methodology and the premises accepted or the conclusions reached.
If it can be technically argued and, most importantly, adequately defended in court, we will make a properly justified contradictory opinion that allows its presentation in court with full guarantees.
In these cases, it is common that on the day of the trial a confrontation with the police officers who have signed the report is necessary. All our technicians have sufficient training and experience to be able to carry it out with technical solvency and full reliability.
Yes, as long as they do not go against the impartiality of the report. Keep in mind that the expert's work is subject to civil and criminal liability, which can lead to heavy fines and prison sentences in case of not being totally impartial in their reports.
When you hire our services, we become, together with your lawyer, an active part of your process. It is important that you provide us with all the documentation related to the object of the expertise. For example, in the case of the defence of a claim for a product that has an issue, we want to evaluate the initial quotation, the e-mails exchanged with the client, the product specification sheet, the contract, etc.
In fact, we advise lawyers to send us the claim and the response to the claim in order to study all the arguments of both parties.
Basically, we need to study any documents or opinions that may influence, directly or indirectly, the opinion. As experts we will determine what is important and what is superfluous. That way we will avoid surprises on the day of ratifying the report at the oral trial. In this sense, trusting us is your best guarantee.
Once the report is validated, we will proceed to send it to you electronically, digitally signed by its author, through a secure channel. Remember that is an environmentally responsible company and therefore is classified as a Paperless Office. However, if you need printed copies, we will send you two at no additional cost to the address you provide.
Normally you will receive them within 24 hours. In any case, when the report is urgent, we will use the service that allows you to have the document when you need it.
Whether you are an attorney or a direct requestor, once the expert report is finalized, we can send you a copy of it in the electronic format you request, so that you can review it before its final issuance. If you prefer, we will send you a link to the document that you can download directly.
We will have no objection to clarify, qualify or expand on those issues that you consider appropriate, as long as they do not involve a technical contribution that we cannot maintain or violate the impartiality of the report.
When we analyse a case, we study all the documentation and consider all the information provided to us directly by the client or his lawyer. We get fully involved in each case, spending as much time as necessary to provide a technical view of the real possibilities of making the expert report.
The provision of funds are the fees paid by the client for this initial analysis, which are an advance on the total fees of the expert report.
The fees for the preparation of the expert report are calculated objectively considering different factors:
Documentation to be analyzed.
Necessary processes.
Complexity.
Profile of the expert / s to be assigned.
Need for complementary processes (such as laboratory tests).
Urgency of the expert opinion.
All this is summarized in that we prepare a closed economic proposal according to the work to be done and consequently, to the time we are going to dedicate. This proposal will be provided to you prior to commissioning the expertise and there are no subsequent deviations. We do not charge percentages or apply strange formulas.
Ask for an estimate without any obligation from our CONTACT section.
Yes, once all your doubts have been resolved and the feasibility of the expert's report has been studied, we will send you a free estimate with no obligation whatsoever.
Yes. Remember that an expert report cannot ensure the success of the litigation, since this also depends on the good work of the lawyers and mainly, the interpretation of the judge. In any case, our reports increase the chances of your success.
Yes, as long as we are notified of the job in advance. Generally, we will make one or two trips. The first one would be to acquire the digital evidence to be studied. This procedure can be omitted if it is possible for the client to send us the electronic evidence. For example, if the work consisted of authenticating WhatsApp messages, it would be sufficient for the client to send us the cell phone by post. The second trip would be for the ratification of the report in court. This step could be omitted if the court in question has telematic means.
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