A forensic examination can be appointed and carried out both before the initiation of a case and during the preliminary investigation. In this case, the decision is made by the procedural person, this is stated in Art. 195 Code of Criminal Procedure of the Russian Federation. However, in practice, examinations are also appointed by investigators. At the time of making a decision to conduct an FEI, the investigator draws up a resolution. After this, he introduces this document to the parties to the criminal process. In this case, a protocol is drawn up and a corresponding entry is made there, as stated in Art. 195 Code of Criminal Procedure of the Russian Federation.
Basic moments
The appointment and conduct of an investigation is necessary in order to more thoroughly understand the details of the crime committed. That is why the investigator is responsible for carrying out the examination, according to Art. 195 Code of Criminal Procedure. After all, it is he, as a procedural person, who orders its implementation and makes the appropriate decision. This document states:
- grounds for conducting research (for example, detection of beatings or other bodily injuries on the victim), which is usually done before the initiation of a case;
- all personal data of the specialist and the name of the institution;
- issues that need to be resolved (for example, how the injuries were sustained);
- all materials coming into the hands of the state expert.
The investigator, as an official, must familiarize the parties to the criminal proceeding with the decision on preparation for the forensic examination and explain to them their rights and responsibilities. An entry about this is made in the protocol in accordance with Art. 195 Code of Criminal Procedure of the Russian Federation. In what period of time from the moment the decision is made the investigator must familiarize the parties with it is not stated in the code.
Important
In cases where it is necessary to determine the cause of death of a citizen or the degree of harm caused, an examination is considered necessary. In addition, it cannot be avoided even when law enforcement agencies have doubts about the sanity of the person who committed the crime. Especially when the case requires establishing the age of the alleged attacker, but due to the lack of documents this is not possible. The specifics of appointing and conducting an examination in such cases are clearly stated in Art. 195, 196 Code of Criminal Procedure of the Russian Federation.
However, forensic examination is always carried out only at the discretion of the investigator. In this regard, an examination may be appointed in a number of other cases when required by law.
What do you need to know about re-examination?
Since there are two sides to almost any case, one of them will probably not like the expert's opinion. These can be formal quibbles with the design and procedure of the examination, as well as significant comments that cast doubt on the examination itself and its conclusions. In such cases, a re-examination is ordered. In dry legal language, this is formulated in the same articles of procedural codes as follows:
Code of Criminal Procedure of the Russian Federation Article 207 . Additional and repeated forensic examinations
- In cases where doubts arise about the validity of the expert’s conclusion or there are contradictions in the conclusions of the expert or experts on the same issues, a repeat examination may be ordered, the production of which is entrusted to another expert.
Arbitration Procedure Code of the Russian Federation Article 87 . Additional and repeated examinations
- If doubts arise about the validity of an expert’s conclusion or there are contradictions in the conclusions of an expert or a commission of experts on the same issues, a re-examination may be ordered, the conduct of which is entrusted to another expert or another commission of experts.
Code of Civil Procedure of the Russian Federation Article 87 . Additional and repeated examinations
- In connection with doubts that have arisen about the correctness or validity of a previously given conclusion, or the presence of contradictions in the conclusions of several experts, the court may order a repeat examination on the same issues, the conduct of which is entrusted to another expert or other experts.
- The court's ruling on ordering an additional or repeated examination must set out the reasons for the court's disagreement with the previously given conclusion of the expert or experts.
The key difference between a re-examination and an additional one is the fact that the expert has compromised his conclusion, his qualifications, and his objectivity. In this regard, a re-examination is always assigned to a different expert or a completely different commission of experts.
When conducting a re-examination, the same questions are indicated as in the primary examination, and the same objects are transferred for research.
Let us consider in more detail cases of compromise of an expert and his conclusion:
- Failure to sign a warning of liability for giving a knowingly false conclusion
- The rights and obligations of the expert are incorrectly formulated (for example, instead of the APC, the Code of Civil Procedure is indicated)
- The research objects do not correspond to those submitted for research qualitatively (damaged) or quantitatively (not fully provided), provided that the expert did not note this in the conclusion
- The conclusions do not correspond to the questions posed or contradict the research part
- There is a serious technical error (for example, the current is indicated in volts)
- The expert refers to his lack of technical or organizational ability to conduct an examination
- The expert violated the non-disclosure requirement
- The expert did not promptly notify the parties in the case about the examination. The most striking example is the inspection of a car after an accident.
- An expert or expert institution is dependent (affiliated) with one of the parties to the case
- The expert is a close relative of one of the participants in the process
- The expert used unacceptable methods (this fact requires proof, at least in the form of a review)
There are rarer cases when a re-examination is ordered after violations were discovered in the procedure for appointing the primary one. An example is the failure of the accused to familiarize himself with the decision to order an examination.
A comment
Expertise in criminal proceedings is usually called judicial, regardless of what stage of the investigation it is carried out. It is a study of materials provided by the investigator to the specialist. The investigator, the inquiry officer and the court have the right to order an examination. The basis for conducting an examination will be the need to obtain new knowledge on the case, which is necessary for a more detailed presentation of the entire picture of the atrocity that occurred. After her appointment, the procedural person must draw up a resolution. The document states:
- expert and institution data;
- issues relevant to the investigation of a crime;
- reasons for conducting the study;
- materials transferred to the specialist.
After this, the parties to the case must be familiarized with this resolution, as indicated by Art. 195 Code of Criminal Procedure of the Russian Federation. One can only agree with the comments added to it and note such an important point that not only the investigator, but also the court and the interrogating officer have the right to order an examination. In some cases, an examination of victims can only be carried out with the consent of their representatives. For example, when a person is under eighteen years of age. At the same time, many parents are very critical of the issue and do not want publicity and for this reason refuse the examination.
Article 195 of the Code of Criminal Procedure of the Russian Federation. The procedure for appointing a forensic examination (current version)
1. On the concept of expertise, see commentary. to paragraph 49 of Art. 5.
Expertise as the main form of using special knowledge must be distinguished from other forms: 1) the use of special knowledge by the investigator himself, for example, when removing traces during investigative actions; 2) assistance from a specialist (Article 58 of the Code of Criminal Procedure), which, in turn, may consist of: a) assistance in the detection, securing and seizure of objects and documents, the use of technical means in the study of case materials. Such actions are not independent research and are carried out as part of other investigative actions; b) assistance in asking questions to the expert. This activity constitutes an element of the purpose of the examination, being its preparatory stage; c) giving explanations on special issues in the form of testimony or written opinions; 3) use of the results of so-called non-procedural special studies (acts of departmental examinations, for example, commodity examinations; audits, audits, calculation of the cost of repairing a damaged car, etc.). All such studies take place outside the criminal procedural form, and their results are attached to the case as other documents (Article 84 of the Code of Criminal Procedure). Such studies, unlike examinations, are not provided with procedural conditions and guarantees, therefore, after the initiation of a criminal case, a forensic examination can, and in some cases should, be appointed instead.
Such other documents and written conclusions of a specialist should be distinguished from special studies conducted before the initiation of a criminal case, mainly on the instructions of the operational investigative units of the investigative bodies (so-called express studies), for example, to determine whether the seized item is a bladed weapon, substance - to drugs, etc. Such studies are usually carried out by staff members of the forensic departments of the investigative bodies. In our opinion, such studies are classified as operational investigative activities (“research of objects and documents” - clause 5, part 1, article 6 of the Federal Law “On operational investigative activities”), the results of which cannot be considered evidence even in the form of other documents. After all, recognizing their evidentiary value means agreeing to conduct examinations in person before initiating a criminal case, which would devalue the legal ban on this type of investigative actions here. The significance of such express research is only to establish the grounds for initiating (or refusing to institute) a criminal case. They cannot be considered as expert opinions (Part 3 of Article 80 of the Code of Criminal Procedure), because according to the direct instructions of Part 1 of Art. 58 of the Code of Criminal Procedure, a specialist is a person involved in participation only in procedural, i.e. actions provided for by the criminal procedural law, and express research is unknown to him. This conclusion is also true for the so-called acts of forensic medical examinations, which were previously usually carried out before the initiation of relevant criminal cases on behalf of the preliminary investigation authorities. The only source of regulation for such “examinations” was Order of the USSR Ministry of Health of December 11, 1978 N 1208 “On the introduction into practice of the all-Union Rules for the forensic medical determination of the severity of bodily injuries.” It should, however, be taken into account that on August 17, 2007, the Decree of the Government of the Russian Federation approved new Rules for determining the severity of harm caused to human health, which do not provide for such action. In addition, it should be taken into account that criminal procedural relations cannot be regulated by by-laws. These acts cannot be considered the results of non-procedural departmental research, which, as stated above, can be accepted in the process as other documents, since objectively, being appointed not separately from the criminal process, but at the request of the preliminary investigation authorities, they actually duplicate the conclusions of the court -medical experts.
When applying the norms of Chapter 27 of the Code of Criminal Procedure of the Russian Federation, it is necessary to take into account the Federal Law of May 31, 2001 N 73-FZ “On State Forensic Expert Activities in the Russian Federation”, which is subject to application to the extent that does not contradict the Code of Criminal Procedure.
2. An examination is an investigative action, therefore it is subject to the general rules for conducting investigative actions. See comment. to Art. 164. The basis for ordering an examination is the need to establish facts using an expert’s opinion - a special source of evidence. The issue of this necessity is decided by the entity conducting the proceedings. However, in some cases, the appointment of an examination is mandatory. See comment. to Art. 196. Special conditions for ordering an examination are the sufficiency of objects for research, the availability of scientifically based expert methodology on the subject and, as a general rule, the consent of the witness and the victim to their examination.
3. Part 1 of the commented article imposes special requirements on the content of the decision on the appointment of an examination (its motivation). In this case, special attention should be paid to the following points: a) the questions posed to the expert must fully cover the fact being established, have an unambiguous wording and do not go beyond the expert’s special knowledge. To do this, it is useful to familiarize yourself with the methodological recommendations for this type of examination and get advice from the expert or specialist himself (Part 1 of Article 58 of the Code of Criminal Procedure); b) the resolution must indicate the individual characteristics of the objects of examination and their packaging in order to eliminate doubts about the substitution of objects; c) if the examination is carried out outside an expert institution (Part 5 of Article 199 of the Code of Criminal Procedure), then the investigator first establishes the competence of the expert and the absence of grounds for his challenge, which is also reflected in the case materials and in the decision on the appointment of the examination.
4. A state forensic expert is a certified employee of a state forensic institution who carries out a forensic examination in the performance of his official duties (Article 12 of the Federal Law “On State Forensic Expert Activities...”). For forensic institutions, see comment. to clause 60 art. 5. An expert examination in a criminal case may also be entrusted to “another expert from among persons with special knowledge.” This can be a “private” expert (an employee of a non-state expert institution, a specialist with an appropriate license) or any other individual who has the necessary knowledge. At the same time, the state forensic expert does not have the right to carry out forensic expert activities as a non-state expert, accept orders to conduct a forensic examination directly from any bodies or persons, with the exception of the head of the state forensic expert institution (Article 16 of the Federal Law “On State Forensic Expertise”). expert activity.."). Forensic psychiatric examinations are permitted only in state forensic institutions that fall under the jurisdiction of the federal executive body (Part 5, Article 11 of the Federal Law “On State Forensic Expert Activities...”).
5. The decision to order an examination must be familiarized with: a) each suspect and accused in this case and their defense attorneys. Familiarization with the decision must take place even when the examination was carried out before the appearance of the suspect and accused in the case. For information on the rights of these persons upon review, see the comment. to Art. 198; b) the victim in respect of whom the examination has been ordered, his representatives (Part 2 of Article 198 of the Code of Criminal Procedure); c) the victim, civil plaintiff, civil defendant and their representatives, if the examination was ordered at their request (clause 9, part 2, article 42; clause 10, part 4, article 44; part 2, article 159 of the Code of Criminal Procedure); d) a lawyer and legal representatives of the witness, if the examination is carried out in relation to him. Familiarization with the resolution on the appointment of an examination involves some study of the objects of the examination, as well as data indicating the proper qualifications of the expert.
———————————
See: Determination of the Constitutional Court of the Russian Federation of December 18, 2003 N 429-O.
6. The commented article does not directly provide for the possibility of forced expert examination of a witness. However, it competes with the content of Part 5 of Art. 56 of the Code of Criminal Procedure, which provides for the compulsory examination of a witness in cases where it is necessary to assess the reliability of his testimony (Part 1 of Article 179 of the Code of Criminal Procedure). A comparison of these norms and the absence of special instructions on forced examination of the victim (Article 42 of the Code of Criminal Procedure) lead to the conclusion that the norm of Part 5 of Art. 56 of the Code of Criminal Procedure as special. At the same time, to assess the reliability of a witness’s testimony, the appointment of an examination is optional (Article 196 of the Code of Criminal Procedure).
Comment source:
Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition
SMIRNOV A.V., KALINOVSKY K.B., 2009
Order
To carry out the examination, the investigator sends all materials along with the decision to the management of the specialized medical institution. In this case, this document can be returned back to law enforcement agencies. But only if the institution does not have a specialist who could professionally conduct this examination. As a rule, it is carried out only in government organizations subordinate to the Ministry of Internal Affairs. But in exceptional cases, the examination can be entrusted to a specialist of a different level, while his rights and responsibilities are explained to him and the necessary materials and documents are provided. Art. 195, 196 and 199 of the Code of Criminal Procedure of the Russian Federation provide for the procedure for its appointment, sending documents and mandatory implementation in a special institution.
Familiarization
Before conducting an examination, the investigator must perform several actions. As Part 3 of Art. 195 of the Code of Criminal Procedure of the Russian Federation, the procedural person familiarizes the parties with the resolution, which indicates who will conduct the study of the provided materials and for what purpose. In this case, citizens must be explained their rights guaranteed by the code. Parties to criminal proceedings must be familiar with the document on the examination. In addition, they have the right to ask the investigator to include additional questions in the resolution, on which a specialist would give an opinion. Also, the accused and his lawyer, the victim and the witness can challenge the expert and petition for a study to be conducted in a specific medical institution. Then the parties to the process must be familiar with the expert’s opinion.
What do you need to know about additional examination?
Of course, an expert is a person with special knowledge and skills. However, this does not guarantee that its conclusion will be clear to all participants in the process. The issue of unclear interpretations of the conclusion can be resolved in two ways: by questioning an expert or by ordering an additional examination. Moreover, in this situation, commercial expert institutions, as a rule, do not pay for the examination.
Let us give as an example the court’s question and the expert’s answer:
Question : What is the read date of the email?
Answer : The email is dated 04/01/2012.
In this situation, it is not disclosed what “dated” means - whether the dating of the letter is the date of its sending, delivery, or, in fact, reading.
Interrogation of an expert in such situations is most appropriate from the point of view of saving resources (time and material), and can be carried out by the body that appointed the examination or by the body entrusted with this. So, for example, an expert who gave an opinion on an arbitration case can simply be summoned to court. If the expert’s opinion is attached to the materials of a criminal case being investigated in a different region (compared to the region where the expert is located), then his interrogation, as a rule, is entrusted to employees of the investigative committee of the region where the expert is located.
So, in the above example, it is acceptable to receive an explanation from the expert that by the term “dated”, the expert meant exactly the date the letter was read.
The issues of appointing additional forensic examination are regulated by the articles of the relevant codes:
Code of Criminal Procedure of the Russian Federation Article 207 . Additional and repeated forensic examinations
- If the expert’s conclusion is insufficiently clear or complete, as well as if new questions arise regarding the previously investigated circumstances of the criminal case, an additional forensic examination may be ordered, the production of which is entrusted to the same or another expert.
Arbitration Procedure Code of the Russian Federation Article 87 . Additional and repeated examinations
- If the expert’s conclusion is insufficiently clear or complete, as well as if questions arise regarding the previously examined circumstances of the case, an additional examination may be assigned, the conduct of which is entrusted to the same or another expert.
Code of Civil Procedure of the Russian Federation Article 87 . Additional and repeated examinations
- In cases of insufficient clarity or incompleteness of the expert’s conclusion, the court may order an additional examination, entrusting it to the same or another expert.
The key point in all three codes is the assumption that additional examination may be assigned to the same expert .
Additional examination may be appointed both in the situation described above and for other reasons.
Additional forensic examination in civil proceedings (and not only) is appointed primarily due to the emergence of additional questions . Additional questions may arise both independently, during the examination, and as a result of the initial examination. In essence, the wording, additional questions do not imply special knowledge in an area other than the one in which the questions on the primary examination were posed. However, in some cases, questions may arise in related areas. Thus, based on the results of a video technical examination of a digital recording, a computer technical examination of the DVR may be required. But such an examination should be considered as a separate primary examination, and not as an addition to a previously conducted one.
As an example of the emergence of additional questions based on the results of the analysis of the expert’s opinion, the following situation can be cited:
Question : What information about the activities of Horns and Hooves LLC is available on the hard drive under study?
Answer : On the hard drive under study there is a 1C Enterprise 8 database, named “Hoof Accounting”
Additional question : Does the 1C Enterprise 8 database, available on disk, contain information about the payment of tax contributions for 2022?
Another reason for additional examination may be newly emerged research objects . Thus, the parties may “discover” another computer, potentially containing valuable information, documents related to the case, and so on. In this situation, the appearance of new questions is not necessary; simply adding objects is possible.
The example is quite simple:
Question : Do the 12 system units presented for research comply with the state conditions? contract No. 1 dated 01/01/2018?
Answer : The 12 system units submitted for research meet the conditions of the state. contract No. 1 dated 01/01/2018
Additional question : Do the 5 system units submitted for research comply with the state conditions? contract No. 1 dated 01/01/2018?
The last two situations obviously entail labor costs for the production of the study and, as a rule, are paid additionally for commercial institutions.
With consent or not
Carrying out an examination in the cases specified in Part 4 of Art. 195 of the Code of Criminal Procedure of the Russian Federation, is carried out only when the witness and the victim look at it positively. If they are minors, then their legal representatives make decisions for them. In addition, in practice situations often occur when parents are against their child taking part in the examination. This happens because people simply do not want third parties to know about the misfortune that happened in their family (for example, when a daughter was raped). It is for these reasons that examinations are not carried out and the decision on the issue of initiating a case or further conducting the investigation is suspended or remains without movement.
What does judicial practice show under this article?
In judicial practice, dozens of examinations are used, which make it possible to convict a person guilty of a crime and acquit an innocent person. An example of the effectiveness of the examination would be the situation with the murder of a person. Footprints and pieces of fabric caught on tree branches were found at the scene. The investigator issued a resolution to conduct two examinations.
One of them, forensic, made it possible to clearly determine the shoe print, its size and estimated weight, and the height of the person who left it. The examination of the fibers made it possible to establish that the fabric particles belonged to a specific product, to establish the method of its manufacture, and also to find out the causes and nature of damage to the original product that could have remained with the criminal.
The study made it possible to establish that at the scene of the crime there was a tall, obese man, since the size of the leg was large and had a strong imprint, which remains only when a person is of large build. In addition, one mark was harder than the other, indicating that the suspect was limping. There weren’t many lame people around the deceased man; the evidence immediately pointed to his brother. A torn jacket was found in the lame brother's home, pieces of which were found at the scene. The man was charged and prosecuted under Article 105 of the Criminal Code of the Russian Federation.
What decisions are most often made under Article 195 of the Code of Criminal Procedure?
The procedure for appointing an examination is regulated by the Code of Criminal Procedure of the Russian Federation; the legislator himself decides which type of examination is necessary depending on the category of the case and the trial.
Based on the nature of forensic examination, research is divided into the following types:
- primary – carried out for the first time;
- additional – carried out if there is a need to examine additional materials;
- repeated – carried out if doubts remain after the initial examination;
- commission - made by a group of experts with expert qualifications in one field;
- comprehensive - carried out using persons with knowledge in various fields.
Each study has its own characteristics and is prescribed under certain circumstances. The examination carried out can be considered evidence if it is carried out clearly within the specified period, meets the requirements of the production or the established procedure for implementation. In other cases, the results of the research obtained will not be taken into account, even if they contain irrefutable facts.
If the examination was carried out at the written request of one of the parties, it will be considered evidence only after examination by the court and inclusion in the case materials as part of the proceedings.
Circumstances that may cause the examination to be invalid
The results of the examination are documented in a special protocol. This protocol must contain mandatory points regarding which particular object was studied, the date and time of the experiment, the questions posed to the specialist and the answers to them. It is also necessary to indicate the expert’s personal data and range of specialization. If the protocol is not drawn up correctly, the court will not take into account the expert assessment.
The examination will also be declared invalid if the expert went beyond the limits of his competence, took the initiative in an improper procedural form, independently collected materials for research (they must be provided by the investigator), drew conclusions based on the case materials and not the research, and was in constant contact with interested parties. . All this suggests that the expert did not behave as the Criminal Procedure Code told him to; accordingly, he will be excommunicated from the investigation and a re-examination will be carried out.
During the rapid development of technical and innovative processes, the activities of experts have become incredibly popular and are used much more often than in Soviet times. Methods for investigating crimes are becoming more and more diverse, but the effectiveness of new methods cannot be denied. Expertise has become a vital component of successfully solving criminal cases; sometimes they can even save a person from imprisonment (if declared insane) and acquit a person against whom serious evidence has been collected.
Nuances
A legal analysis of some norms of the Code of Criminal Procedure relating to the appointment and implementation of examinations once again proves the fact that the legislation in this matter is imperfect and contradicts the Constitution. For example, in practice, a suspect cannot fully exercise his right granted by the Code of Criminal Procedure and challenge an expert. This may occur due to the fact that the investigator in the resolution indicated only the data of the government agency, but did not indicate the surname and initials of the specialist.
In addition, the issue of the professionalism of experts who conduct research in the field of criminal proceedings remains controversial. Because a specialist, without having certain knowledge, will not be able to give correct answers to the questions asked of him. Thus, the fate of an innocent person who will be convicted if there is an incorrect expert opinion may be at risk.
