Involving a specialist in criminal proceedings

The Supreme Court on the rules for interrogating a specialist

The expediency of preparing a draft resolution of the Plenum of the Supreme Court of the Russian Federation “On the practice of applying legislation regulating the consideration of criminal cases in the court of first instance in the general procedure of legal proceedings” is beyond doubt.

In the presence of adopted resolutions of the Plenum of the Armed Forces of the Russian Federation dated November 27, 2012 No. 26 “On the application of the norms of the Criminal Procedure Code of the Russian Federation governing proceedings in the court of appeal” and dated January 28, 2014 No. 2 “On the application of the norms of Chapter 47.1 Criminal procedural code of the Russian Federation, regulating proceedings in the court of cassation,” it was impossible to recognize as sufficient the existence of the Resolution of the Plenum of the Supreme Court of the Russian Federation of August 29, 1989 No. 4 “On compliance by the courts of the Russian Federation with procedural legislation when considering criminal cases at first instance.” Moreover, it was adopted even before the current Code of Criminal Procedure of the Russian Federation came into force, although related amendments were made to it.

The vast majority of the provisions of this draft are not controversial.

Involving a specialist in criminal proceedings

It should be remembered that an expert who gives an expert opinion in court is more often involved in legal proceedings to obtain information and resolve issues of his competence than a specialist. The main difference between a specialist and an expert is that a specialist is involved in searching, securing and seizing evidence, as well as explaining technical nuances to all participants in the process within the framework of his professional knowledge.

“The expert’s opinion can be added to the case materials and is also evidence as such. This may contribute to the fact that the expert’s conclusion, which was carried out as directed by the investigator or the court, may be called into question,” says lawyer Evgeny Erlikhman.

If a specialist is questioned in court at the request of a party, he must be warned of criminal liability for giving a false opinion. This improves the quality of his testimony, which, accordingly, can become a powerful argument in favor of the arguments of the defense lawyer or lawyer, for example, the victim.

“The nuance is that the courts are not very happy with such arguments - about questioning a specialist about including his testimony in the case materials. This makes the work of the courts much more difficult. They are trying in every possible way to avoid this and refuse to satisfy such requests. But part 4 of Article 271 of the Criminal Procedure Code provides that the court does not have the right to refuse to interrogate a specialist whose appearance is ensured by a lawyer in court,” says lawyer Evgeniy Erlikhman.

Despite the actual indication of this rule of law in the Criminal Code, judges often refuse such requests. It should be remembered that an oral petition is not always effective during the process. In order for a specialist who arrives at the court to be questioned for sure, a request for questioning must be submitted in writing.

“From my practice I can tell you: even when the attendance of a specialist is ensured, in these cases the courts refuse. When you prepare a petition in writing with references to the norms of the law of the procedural and Criminal Codes of Russia, in particular to Part 4 of Article 271 of the Code of Criminal Procedure of the Russian Federation, the court is simply forced to agree,” says lawyer Evgeny Erlikhman.

If you follow all the recommendations presented, the interrogation of a specialist and his conclusion are very valuable weights on the scales on the part of the defense. Of course, the expert's opinion is much more significant. And in order to give more value to the conclusion of a specialist, you should interrogate him in court, having previously warned him about this in writing.

“The greater weight of a specialist’s conclusion is ensured, among other things, by warning him about liability for giving false testimony,” says lawyer Evgeny Erlikhman.

Everything about criminal cases

- the defense has an ironclad right to invite (by ensuring the appearance of) any specialist; the court has no right to refuse to question him (Part 2.1 58 Code of Criminal Procedure

).

— you can see an example of the participation of such a specialist — Example of work

a defender with the involvement of his specialist (to combat the examination).

by the prosecution is present at the meeting

, then a contradiction will inevitably arise between the testimony of two experts: the defense and the prosecution.

— therefore, you need to prepare your specialist in advance. He must be ready to defend his point of view with reason.

Preparing a specialist for a duel

— you have a slight advantage: you assume in advance that this contradiction will arise, and the prosecution specialist is not ready for this.

- Your specialist has the opportunity to compare the conclusion drawn up by the prosecution specialist and his own conclusion; he has the opportunity to prepare questions in advance that hit the weak points.

- whatever the opponent’s qualifications, it will be difficult for him to navigate highly technical issues, as a result, your specialist will present his point of view convincingly, justifying it with scientific methods, and the opponent will appeal only to the text of the conclusion available in the criminal case.

Help your specialist

- it may turn out that the rough edges that arose during the meeting, the uncertain answers of the prosecution specialist, all this will be reflected in the protocol not exactly as it was in reality.

- so as not to be surprised later when reading the minutes of the meeting (and not to write helpless comments on the minutes

), try to ensure that in the protocol the court is forced to devote as much space as possible to describe the interrogation of the specialist.

Ask questions

- norm 259 Code of Criminal Procedure

will not allow the court to ignore these questions and the answers to them; they will have to be reflected in the record, no matter how inconvenient they may be. These are your “bookmarks” for the stages of appeal and cassation.

— ask detailed questions like “justify your opinion” (for which the defense specialist is prepared in advance).

— break large questions into parts and ask them separately, that is, do not give the secretary the opportunity to “blur” your specialist’s answers in the protocol.

Pressure from the prosecutor

— the emergence of new defense evidence based on the testimony of a specialist will not leave the prosecutor indifferent.

— be prepared for the fact that psychological pressure may be exerted on your specialist (the prosecutor may remind you of criminal liability for false testimony).

- warn the specialist about this in advance, explain that there is no need to fear this threat, since:

- Article 307 of the Criminal Code

requires knowledge, liability for it is possible only with conscious distortion of facts (which is difficult to prove).

- if the opinion of a specialist is based on scientific data and methods, then there cannot be a crime.

Another comment on Art. 58 Criminal Procedure Code of the Russian Federation

1. The role of a specialist is to assist the inquirer, investigator, court, and other participants in the process in carrying out procedural actions. He draws their attention to circumstances that may be important to the case; provides technical assistance; provides clarifications and advice on issues requiring special knowledge.

2. The written conclusion of a specialist and his testimony on issues related to his special knowledge can serve as evidence in criminal proceedings (see commentary to Article 80 of the Code of Criminal Procedure of the Russian Federation).

3. A specialist is invited to participate in procedural actions by being summoned by an inquiry officer, an investigator or a court. A defense lawyer can also involve a specialist (clause 3, part 1, article 53 of the Code of Criminal Procedure of the Russian Federation). For a defender, a specialist is, first of all, a consultant, a technical assistant. Participation of a specialist chosen by the defense attorney in investigative or judicial actions is possible at the request of the defense attorney, submitted respectively to the inquiry officer, investigator, prosecutor or court.

4. The main conditions that a specialist must meet are competence and disinterest in the case (see commentary to Article 71 of the Code of Criminal Procedure of the Russian Federation).

5. Part 4 sets out the specialist’s responsibilities, failure to fulfill which may result in sanctions. For evading appearance on calls in accordance with Art. Art. 111 and 117 of the Code of Criminal Procedure of the Russian Federation, a monetary penalty may be imposed on a specialist.

Article 57 of the Code of Criminal Procedure of the Russian Federation. Expert

1. Expert - a person with special knowledge and appointed in the manner established by this Code to conduct a forensic examination and give an opinion.
2. The calling of an expert, the appointment and conduct of a forensic examination are carried out in the manner established by Articles 195 - 207, 269, 282 and 283 of this Code.
3. The expert has the right: 1) to get acquainted with the materials of the criminal case related to the subject of the forensic examination; 2) apply for the provision of additional materials necessary for giving an opinion, or the involvement of other experts in the forensic examination; 3) participate, with the permission of the inquirer, investigator and the court, in procedural actions and ask questions related to the subject of the forensic examination; 4) give an opinion within the limits of their competence, including on issues that, although not raised in the resolution on the appointment of a forensic examination, are related to the subject of the expert study; 5) file complaints against actions (inaction) and decisions of the inquirer, investigator, prosecutor and court that limit his rights; 6) refuse to give an opinion on issues that go beyond the scope of special knowledge, as well as in cases where the materials presented to him are insufficient to give an opinion. The refusal to provide an opinion must be stated by the expert in writing, outlining the reasons for the refusal.
4. An expert does not have the right to: 1) negotiate with participants in criminal proceedings on issues related to the conduct of a forensic examination without the knowledge of the investigator and the court; 2) independently collect materials for expert research; 3) conduct research without the permission of an inquiry officer, investigator, or court that could lead to the complete or partial destruction of objects or a change in their appearance or basic properties; 4) give a knowingly false conclusion; 5) disclose data from the preliminary investigation that became known to him in connection with his participation in a criminal case as an expert, if he was warned about this in advance in the manner established by Article 161 of this Code; 6) evade appearing when summoned by an inquiry officer, investigator or to court.
5. For giving a knowingly false conclusion, an expert is liable in accordance with Article 307 of the Criminal Code of the Russian Federation.
6. The expert is responsible for the disclosure of preliminary investigation data in accordance with Article 310 of the Criminal Code of the Russian Federation.

Specialist in civil, criminal and administrative proceedings.

Specialist in civil, criminal and administrative proceedings. The effect of the Federal Law of May 31, 2001 No. 73 FZ “On State Forensic Expert Activities in the Russian Federation”, the new procedural codes of the Russian Federation: Civil Procedure Code, Arbitration Procedure Code, Code of Criminal Procedure, as well as the Code of Administrative Offenses of the Russian Federation more uniformly presented the content of the rules dedicated to the specialist to the needs of judicial practice , to an expert, and to forensic science in general. However, along with the commonality of principles and basic concepts, the procedural regulation of forensic examination in different types of legal proceedings has its own characteristics. The updated procedural legislation failed to completely overcome the shortcomings in previous codes.

For example: - in the Civil Procedure Code of the Russian Federation there is no procedural status of a specialist in relation to the Code of Criminal Procedure of the Russian Federation, Article 58 of the Code of Criminal Procedure of the Russian Federation “Specialist”, the production of a specialist’s conclusion, Article 80 of the Code of Criminal Procedure of the Russian Federation “Conclusion and testimony of an expert and specialist”, and in Art. 188 of the Code of Civil Procedure of the Russian Federation “Consultation with a specialist”, a specialist gives advice only orally or in writing without conducting special research;

- in the Code of Administrative Offenses of the Russian Federation in Art. 25.8 “Specialist”, who is necessary (extract abbr.) “to assist in the discovery, securing and seizure of evidence...”, there is no specific list of special and forensic actions of a specialist, such as his participation in “taking samples and samples” (Article 26.5 Code of Administrative Offenses of the Russian Federation) and giving them advice in court, as well as a specialist participating in the proceedings, cannot participate in the same case as an expert.

In procedural legislation, there are two forms of involving persons with special knowledge in the field of science, technology, art, and craft: a) in the form of examination; b) by involving a specialist. The defining term (Latin [expertus] – a knowledgeable person invited in controversial or difficult cases for examination) they are called “knowledgeable persons”, “persons knowledgeable in a certain field of knowledge”.

At their core, these persons are the same - they are holders of special knowledge, the main difference is only that the expert’s conclusion is specific equivalent evidence, and the specialist’s actions in the process mainly have technical, advisory and preparatory functions for the appointment of an examination, with the exception of the Code of Criminal Procedure of the Russian Federation.

In Art. 80 of the Code of Criminal Procedure of the Russian Federation “Conclusion and testimony of an expert and specialist”, a specialist gives a judgment on issues raised by the parties in writing, and the “conclusion of a specialist” is evidence.

The specialist, as a participant in the process, appears in arbitration, civil, criminal proceedings, as well as administrative proceedings.

The grounds for recusal or self-recusal of a specialist are the same as for a forensic expert: incompetence, interest in the outcome of the case, official or other dependence (financial, family, related, etc.) on a person interested in the outcome of the case.

Law enforcement practice in the context of updated procedural legislation has already revealed certain shortcomings. In view of this, many questions arise from forensic expert practice in the appointment, organization and production of examinations.

To resolve these situations in judicial practice, the regulation of which is not provided for by procedural law, two types of elimination of legal gaps are undertaken:

1) publication of new legal norms by the relevant law-making body; 2) bridging the gap by the law enforcer (analogy of law and law).

Analogy (from the Greek analogia - correspondence, similarity) is the similarity of various objects, phenomena, processes in some properties. The process of inference by analogy is the transfer of similar, comparable and studied knowledge (entities) to less studied ones.

In practice, there are two types of legal analogy or two ways to overcome gaps:

1) analogy of law (resolution of a case by applying a legal norm regulating relations of a similar nature in the system of legal norms of the same branch of law); 2) analogy of law (resolution of the case on the basis of the general principles and meaning of the legislation, that is, when even a similar norm is not found, the case is resolved on the basis and in accordance with the general spirit, meaning, principles of the current law).

It is important that the possibility and necessity of applying both the analogy of law and the analogy of law are specifically provided for in the law. For example, according to Part 4 of Article 1 of the Code of Civil Procedure of the Russian Federation “Legislation on Civil Proceedings” and Art. Part 3 Art. 11 of the Code of Civil Procedure of the Russian Federation “Regulatory and legal acts applied by the court to resolve civil cases” applies the analogy of law and the analogy of law to the court.

A similar norm is enshrined in Part 6 of Art. 13 of the Arbitration Procedure Code of the Russian Federation “Regulatory legal acts applied when considering cases.” The Code of Administrative Offenses of the Russian Federation did not legislatively regulate the application of the institution of analogy between law and law, which leads to costs when courts consider cases of administrative offenses, including ensuring administrative procedural activities and administrative proceedings.

Article 72 of the Constitution of the Russian Federation names administrative and administrative procedural legislation among the branches of Russian legislation that are the subject of joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation, which ensures in the future the codification of administrative procedural legislation in general and the creation of a unified Administrative Procedural Code of the Russian Federation.

SPECIALIST IN CIVIL PROCEDURE Participation of a specialist in civil proceedings, Art. 188 Code of Civil Procedure of the Russian Federation “Specialist Consultation”. The title of the article indicates and reveals the generalizing and collective function of the activity of a specialist in civil proceedings. Part 1 art. 188 of the Code of Civil Procedure of the Russian Federation reveals in detail the functions, which are divided into two groups: a) receiving consultations and explanations; b) providing direct technical assistance (photography, drawing up plans and diagrams, selecting samples for examination, assessing property).

In accordance with part 1 of Art. 188 of the Code of Civil Procedure of the Russian Federation, a specialist participates in the following procedural actions: obtaining handwriting samples (Article 81), examining written evidence (Article 181), examining physical evidence (Article 183), on-site inspection (Article 184), playing audio - or video recording and its study (Article 185), as well as in the inspection and study of evidence at its location (Article 58).

1. The procedure for attracting a specialist to participate in civil proceedings; the rights and obligations of a specialist. A specialist may be summoned by a judge when preparing a case for trial (when resolving the issue of involving a specialist in the process) and includes him in the list of persons to be summoned (Clause 8, Part 1, Article 150 of the Code of Civil Procedure of the Russian Federation), or at the request of the parties before the judge about obtaining evidence when preparing the case for trial (Clause 2, Part 1; Clause 4, Part 2, Article 149 of the Code of Civil Procedure of the Russian Federation), or during the trial (Article 166 of the Code of Civil Procedure of the Russian Federation) if there is a need for consultation specialist became obvious during the trial.

During the trial, the presiding officer explains to the specialist the rights and obligations (Article 171 of the Code of Civil Procedure of the Russian Federation). A person summoned as a specialist is obliged to appear in court and answer the court’s questions, give written or oral advice and explanations, and, if necessary, provide technical assistance (Part 2 of Article 188 of the Code of Civil Procedure of the Russian Federation).

Consultations given in writing are attached to the case, oral consultations and explanations are entered into the minutes of the court session (Part 3 of Article 188 of the Code of Civil Procedure of the Russian Federation). It is necessary to note that in accordance with Part 3 of Article 188 of the Code of Civil Procedure of the Russian Federation (extract abbreviated) - “A specialist gives the court advice orally or in writing based on professional knowledge, without conducting special studies prescribed on the basis of a court ruling” that the specialist does not conduct special research.

There are no prohibitions in the law for a specialist to become an expert in the same civil case. In Part 2 of Art. 18 of the Code of Civil Procedure of the Russian Federation states that the participation of an expert or specialist in the previous consideration of a given case as an expert or specialist, respectively, is not a basis for their recusal.

2. Consultation before examining evidence and the participation of a specialist in examining evidence at its location, Art. 58 of the Code of Civil Procedure of the Russian Federation “Inspection and examination of evidence at its location.”

Inspection of written or material evidence by the court may be carried out at the place of their storage or location in cases where it is impossible or difficult to deliver them to the court at the place of trial (Part 1 of Article 58 of the Code of Civil Procedure of the Russian Federation). If necessary, a specialist may be involved to participate in the inspection and examination of evidence (Part 2 of Article 58 of the Code of Civil Procedure of the Russian Federation).

Article 71 of the Code of Civil Procedure of the Russian Federation “Written evidence” (extracted from fragment 1 of Article 71 of the Code of Civil Procedure of the Russian Federation) – “... containing information about circumstances relevant to the consideration and resolution of the case: acts, contracts, certificates, business correspondence, other documents and materials made in the form of a digital, graphic recording, including those received via fax, electronic or other communication, or in any other way that allows the authenticity of the document to be established...” The specified written evidence also includes documents received in a foreign state (Part 4 of Article 71 of the Code of Civil Procedure of the Russian Federation).

A significant list of documents with a legal and technical level given in Art. 71 of the Code of Civil Procedure of the Russian Federation, involves the involvement of specialists of various profiles of knowledge in the examination of written evidence (documents) at their location, who are able to advise the participants in the process on a number of specific issues that may arise during the trial.

For example: does the document correspond to the accepted form or sample form of the department, what details should be on this or that document and whether they correspond to the 2nd copy in the office file, the original or a copy in the archive, how digital, graphic, electronic and other forms are deciphered records, etc. A specialist in the field of forensic handwriting and forensic technical examination of documents is involved as a knowledgeable person to establish the topographical match (correspondence and relative position) of the text and details of documents in the original and the 2nd copy being examined; tentative determination of writing materials and method of production (execution) of the document under study; Presumptive determination of diagnostic features of handwriting and signatures (conditions for writing).

Based on the results of the judicial examination, the specialist’s personal versions and the questions posed by the parties and the judge, the specialist proposes an algorithm for interaction in the preparation of materials for the appointment of an examination. As you can see, the role of a specialist when examining written evidence can be very diverse and responsible, depending on the type and purpose of the written evidence.

Art. 73 of the Code of Civil Procedure of the Russian Federation “Physical evidence” (abbr. extract) – “... objects that, by their appearance, properties, location or other characteristics, can serve as a means of establishing circumstances that are important for the consideration and resolution of the case.”

The examination of physical evidence by a specialist is no less important than the above-mentioned examination of written evidence. The specialist involved in the examination of physical evidence must be a person knowledgeable in the diagnosis of these objects. He must know all the quality characteristics of the objects inspected, technical standards, normal and special storage and transportation conditions.

3. Consultation during questioning of witnesses, Art. 69 of the Code of Civil Procedure of the Russian Federation “Witness Testimony” (extracted from the abbreviation of Part 1 of Article 69 of the Code of Civil Procedure of the Russian Federation) - “A witness is a person who may know any information about circumstances that are important for the consideration and resolution of the case. Information provided by a witness is not evidence if he cannot indicate the source of his knowledge.”

The specialist does not have the right to evaluate evidence and give it any evaluation categories when questioning witnesses, such as correct or incorrect, reliable or unreliable testimony. A specialist in the field of forensic handwriting or forensic technical examination of documents is involved as a knowledgeable person to clarify the circumstances and conditions for the execution of certain documents, hence the need for consultations and explanations of a specialist when questioning witnesses.

These consultations and explanations in forensic handwriting may concern testimony on the conditions of execution of the notes and signatures under study, age and chronic diseases, the presence or absence of hand injuries and visual defects of the alleged performer, as well as from what sources free samples of handwriting and signatures can be provided.

During the technical examination of documents, establishing the circumstances of the execution and execution of documents: on what electronic equipment the typewritten text was made, one or more seals were applied with seal impressions, whether handwritten text was completed or added to the document, from what sources free samples of seal impressions can be provided , printed document forms, etc.

Consultations during the questioning of witnesses should be aimed at understanding and establishing by the court all the conditions and circumstances of the execution or preparation of written evidence (documents). In this case, the specialist is guided by special knowledge and the principles of admissibility, relevance and comparability.

4. Consultation when ordering an examination (determining the type and type of examination, choosing an expert institution and an expert) If the need for an examination arises in court, a specialist is able to provide, with his consultation, significant assistance to the court and the parties in resolving the following issues: a) what kind of examination (examination of what kind, type) must be appointed in the trial; b) approximate wording of questions presented to the expert; c) what case materials related to the subject of the examination and what objects of research should be presented to the expert institution or to the order of the expert; d) from what sources and how can free and experimental samples be obtained for comparative research when conducting forensic handwriting and forensic technical examination of documents; e) in which expert institution or by which expert the proposed examination can be carried out, what is the approximate time frame for its completion and what is the approximate cost of the proposed examination.

5. Consultation and explanations when providing evidence, Art. 64 Code of Civil Procedure of the Russian Federation “Providing evidence” In accordance with Art. 64 of the Code of Civil Procedure of the Russian Federation “Securing evidence” (extract) - “persons participating in the case and having reason to fear that the presentation of the necessary evidence will subsequently be impossible or difficult for them may ask the court to secure this evidence” in order to be able to appoint a judicial handwriting and forensic technical examinations of documents. For example: a specialist in the field of forensic handwriting and forensic technical examination of documents, after asking questions, gives advice and explanations: “about the need for urgent selection of experimental samples of signature and handwriting from an elderly person with a serious and chronic illness, due to the progressive destruction of his writing process "; “on changes in general and specific features associated (with the replacement) and operation of seals, replaceable units of copying and duplicating equipment and sign printing devices, etc.

6. Questioning of a specialist In order to supplement and clarify the consultation, questions may be asked to the specialist (Part 4 of Article 188 of the Code of Civil Procedure of the Russian Federation). The first question is asked by the person (his representative) at whose request the specialist was involved, and then the questions are asked by other persons participating in the case. The plaintiff or his representative is the first to ask questions to a specialist brought in at the initiative of the court. The judge has the right to ask questions at any time during the interrogation of a specialist.

Questions to the specialist concern clarification of his consultation or the need for its clarification, additions based on existing methods or methodological recommendations. The interaction of a specialist on the content of consultations and issues should be carried out through the person (or his representative) at whose request the specialist was brought in and tactically prepare with him before the court hearing.

7. Provision of direct technical assistance to the court by a specialist In Part 1 of Art. 188 Code of Civil Procedure of the Russian Federation provides a list of technical assistance to the court: photography; audio-video recording; playback of audio and video recordings; drawing up plans and diagrams; selection of samples for examination, property assessment. The provision of direct technical assistance by a specialist in the field of forensic handwriting and forensic technical examination of documents is associated with giving them advice in the selection of free and experimental samples: handwriting and signatures, seal impressions and stamps, printing forms, etc.

SPECIALIST IN CRIMINAL PROCEDURES In the Criminal Procedure Code of the Russian Federation, a number of articles are devoted to the specialist: 53. “Powers of the defense lawyer”, 58. “Specialist”, 71. “Challenge of an expert”, 74. “Evidence”, 80. “Conclusion and testimony of an expert and specialist”, 168. “Participation of a specialist (during a preliminary investigation), 251. “Participation of a specialist” (during trial), 270. “Explanation of his rights to a specialist,” 287. “Inspection of the area and premises,” 288. “Investigative experiment,” 290. "Inspection". Fundamental and universal is Art. 58 Code of Criminal Procedure of the Russian Federation. “Specialist” it defines a specialist, outlines his functions, and lists the rights and responsibilities of a specialist. To achieve high-quality protection and competitive conditions in legal proceedings, as well as to attract specialists and experts from non-state expert institutions, it is necessary to fully and comprehensively use the capabilities of the following rules of law: 1. Art. 53 of the Code of Criminal Procedure of the Russian Federation. “Powers of the defense attorney” (extract): “— clause 2, part 1: collect and present evidence necessary to provide legal assistance, in the manner established by part 3 of article 86 of this Code; — clause 3 part 1: involve a specialist in accordance with Art. 58 of this Code; - clause 7 part 1: after the completion of the preliminary investigation, get acquainted with all the materials of the criminal case, copy out any information in any volume from the criminal case, make copies at your own expense from the materials of the criminal case, including using technical means”; 2. Part 3 art. 86 Code of Criminal Procedure of the Russian Federation. “Collecting evidence” (extract) - “The defense attorney has the right to collect evidence by: 1) obtaining objects, documents and other information”; 3. Art. 58 Code of Criminal Procedure of the Russian Federation. “Specialist” (extracted): “1. Specialist - a person with special knowledge, involved in participation in procedural actions in the manner established by this Code, to assist in the discovery, securing and seizure of objects and documents, the use of technical means in the study of criminal case materials, to pose questions to the expert, and also to explain to the parties and the court issues within his professional competence. 2. The calling of a specialist and the procedure for his participation in criminal proceedings are determined by Articles 168 (participation of a specialist in the preliminary investigation) and 270 (explanation of his rights to the specialist by the presiding officer) of this Code.

3. A specialist has the right: 1) to refuse to participate in criminal proceedings if he does not have the appropriate special knowledge. 2) ask questions to participants in the investigative action with the permission of the inquirer, investigator, prosecutor, court; 3) get acquainted with the protocol of the investigative action in which he participated, and make statements and comments that must be entered into the protocol. (The specialist’s statements may relate to the actions he performs and be in the nature of explanations. Comments may relate to incorrect interpretation of the specialist’s statements and explanations, or incorrect presentation of the results of his actions). 4) file complaints against the actions (inactions) of the inquiry officer, investigator, prosecutor and court that limit his rights.” The functions, rights and prohibiting actions of a specialist are specified in Art. 58 of the Code of Criminal Procedure of the Russian Federation, also indicates the legal mechanism for engaging a specialist as a defender. However, the practical possibility of attracting non-state specialists as defenders is quite limited, since the state forensic expert system of the Ministry of Internal Affairs of the Russian Federation has a highly qualified staff of specialists (experts) of various classes, types of examinations and research.

To ensure interaction between defenders and non-state specialists, it is necessary to apply: 1. Art. 74 Code of Criminal Procedure of the Russian Federation. “Evidence” (extracted abbreviation): “2. The following are allowed as evidence: 3) expert opinion and testimony; 4) conclusion and testimony of a specialist; 2. Art. 80. “Conclusion and testimony of an expert and specialist” (extracted): “1. Expert opinion – the content of the study and conclusions presented in writing on the questions posed to the expert by the person conducting the criminal proceedings or the parties. 2. Testimony of an expert - information provided by him during an interrogation conducted after receiving his conclusion, in order to clarify or clarify this conclusion in accordance with the requirements of Articles 205 and 282 of this Code. 3. A specialist’s conclusion is a written judgment on the issues posed to the specialist by the parties. 4. Testimony of a specialist - information provided by him during interrogation about circumstances requiring special knowledge, as well as an explanation of his opinion in accordance with the requirements of Articles 53, 168 and 271 of this Code.”

According to the Code of Criminal Procedure of the Russian Federation, the defense party may petition the investigator (inquirer) to: assign an examination to a competent expert in a specific expert institution, change the wording of questions and pose new questions, as well as appoint an additional or repeat examination. However, the final decision remains with the investigator (inquiry officer). In such a situation, it is impossible to talk about equal rights of the parties to the case when ordering and conducting a forensic examination. The specialist’s conclusion to some extent eliminates this inequality, since it is a judgment on the issues posed to the specialist by the parties. As part of the specialist’s conclusion, the legislator determined the equality of the parties and procedurally excluded the person conducting the criminal proceedings. The defense has become empowered to directly address questions to a specialist, implementing the provisions of Art. 53 of the Code of Criminal Procedure of the Russian Federation “Powers of the Defender”, where paragraph 3 of Part 1 of this article speaks of the right of the defender to involve a specialist. According to Part 4 of Article 271 of the Code of Criminal Procedure of the Russian Federation. “Application and resolution of the petition (extracted): “4. The court does not have the right to refuse to satisfy a request for questioning at a court hearing of a person as a witness or specialist who has appeared in court at the initiative of the parties.” The suspect, accused or defense attorney has the right to obtain a specialist’s opinion on the issues raised by him, to invite a court hearing of the specialist himself, whom the court is obliged to interrogate at the request of a representative of the defense. It must be added that current practice shows that questions asked of a specialist by a defense attorney very often relate to the expert’s conclusion. When presenting to the specialist copies of such an expert opinion, the defense attorney must take into account that the specialist does not have the right to give an assessment or evaluation categories of the examination performed; for this purpose, there are additional or repeated examinations in the process. Questions should be posed in such a way that the specialist can answer them on the basis of his special knowledge, without entering into an assessment of the evidence, but only with his answers contributing to the verification of the conclusions of the expert’s opinion. The advisory activities of a specialist can also be carried out both in procedural and non-procedural forms, before the start of proceedings and during legal proceedings. A specialist can provide assistance in preparing certain investigative actions and materials for the appointment of an examination. In a non-procedural form, a specialist can provide consultations to lawyers on the basis of clause 4, part 3 of Art. 6 of the Federal Law of May 31, 2002 N 63-FZ “On advocacy and the legal profession in the Russian Federation”, where a lawyer has the right to engage specialists on a contractual basis to clarify issues related to the provision of legal assistance.

SPECIALIST IN ADMINISTRATIVE PROCEEDINGS Administrative procedural proceedings of the Code of Administrative Offenses of the Russian Federation have significant shortcomings in the operation of a number of article norms that should ensure the implementation of the professional capabilities of a specialist. Disadvantages in Art. 25.8 of the Code of Administrative Offenses of the Russian Federation “Specialist” and in Art. 26.5 of the Code of Administrative Offenses of the Russian Federation “Taking samples and samples” can be overcome by applying (referring to) Art. 24.1 of the Code of Administrative Offenses of the Russian Federation “Tasks of proceedings in cases of administrative offenses (abbr.) - “The tasks of proceedings in cases of administrative offenses are a comprehensive, complete, objective and timely clarification of the circumstances of each case, its resolution in accordance with the law...”. Please note that there are no rules in the code that provide an analogy of law or an analogy of law, there are only “in accordance with the law.” Thus, to solve the problems: 1) “... comprehensive, complete, objective and timely clarification of the circumstances of each case..” undoubtedly requires a specialist with special knowledge or a special action of the judge is necessary in the proceedings, such as the selection of experimental handwriting samples; 2) “... in accordance with the law” - judges only have to apply a similar norm of the Code of Administrative Offenses of the Russian Federation.

Example: in Part 1 of Article 26.4 of the Code of Administrative Offenses of the Russian Federation. “Expertise” (extracted abbreviation) - “... the judge, body, official in whose proceedings the case is pending, make a determination on the appointment of an examination..” and in Part 1 of Art. 26.5 of the Code of Administrative Offenses of the Russian Federation “Taking samples and specimens” - (extracted) - “An official carrying out proceedings in a case of administrative offenses has the right to take samples of handwriting, samples and specimens of goods and other items necessary for conducting an examination” there is a discrepancy in the list of authorized persons subjects of production. When ordering an examination, a judge, undoubtedly, must take samples of handwriting (and not only handwriting), and as an authorized subject of proceedings, he is absent from Part 1 of Art. 26.5 Code of Administrative Offenses of the Russian Federation.

In Part 1 of Art. 25.8 of the Code of Administrative Offenses of the Russian Federation “Specialist” (extract) - “Any adult who is not interested in the outcome of the case, who has the knowledge necessary to assist in the discovery, securing and seizure of evidence, may be involved as a specialist to participate in the proceedings on an administrative offense, as well as in the use of technical means” specifically lists its tasks “to assist in the discovery, securing and seizure of evidence, as well as in the use of technical means.” In Part 2 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation. “Evidence” (extract) - “These data (factual data) are established by the protocol on an administrative offense, other protocols provided for by this Code, explanations of the person against whom proceedings are being conducted for an administrative offense, testimony of the victim, witnesses, expert opinions, other documents, as well as testimony of special technical means, material evidence” provides a complete list of evidence. The specialist locates, secures and seizes evidence, and the expert gives an opinion. When considering Art. 25.8 of the Code of Administrative Offenses of the Russian Federation “Specialist”, the question arises of how to overcome the fundamentality, narrowness and non-specificity of the specialist’s actions in this article, and give dynamism and objectivity to the proceedings. I believe that in order to achieve these goals, we must refer to Art. 24.1 of the Code of Administrative Offenses of the Russian Federation “Tasks of proceedings in cases of administrative offenses”, as well as to Art. Art.: 1. “State forensic activity; 2. “The task of state forensic activity; 3. “Legal basis of state forensic activity”; 10 “Objects of research” - the law “On state forensic activity in the Russian Federation”, law No. 73-FZ of May 31, 2001. In Art.10. “Objects of research” - “extract.” - “The objects of research are material evidence, documents, objects, animals, corpses and their parts, samples for comparative research, as well as materials of the case for which a forensic examination is being carried out.” From the listed objects it is clear that documents and physical evidence are included in the group of research objects that are evidence in accordance with Part 2 of Article 26.2 of the Code of Administrative Offenses of the Russian Federation “Evidence”. The specialist discovers and secures evidence, that is, the features of the document in written or other form, examines it, gives an explanation to the judge on the questions posed and the actions he takes, determines the type of examination, formulates questions for the expert, gives recommendations to the judge on the selection and selection of free and experimental samples , relating to the appointment of handwriting examinations and technical and forensic examinations of documents. It is necessary to point out a significant shortcoming of administrative and procedural activities as a basis for self-recusal and recusal of an expert, provided that he previously participated in the case as a specialist, Part 2 of Art. 25.12 of the Code of Administrative Offenses of the Russian Federation “Circumstances excluding the possibility of participation in proceedings in a case of an administrative offense.”

With the development of administrative and procedural proceedings of the Code of Administrative Offenses of the Russian Federation, new legal norms will undoubtedly be issued by the relevant law-making body, eliminating the following shortcomings: 1) in Art. 25.8 of the Code of Administrative Offenses of the Russian Federation “Specialist”, the actions of a specialist are only to assist in the discovery, securing and seizure of evidence, as well as in the use of technical means. It is necessary to include in the rule of law the provision of consultation by a specialist and the participation of a specialist in the removal of samples; 2) in Art. 25.12 of the Code of Administrative Offenses of the Russian Federation “Circumstances excluding the possibility of participation in proceedings in a case of an administrative offense.” It is necessary to exclude the prohibition for a person participating in a case of an administrative offense as a specialist to be later engaged as an expert in the same case. Overcoming shortcomings in the administrative and procedural proceedings of the Code of Administrative Offenses of the Russian Federation by a defense lawyer or representative is possible only through objective consideration of cases of administrative offenses by judges and obtaining non-judicial consultations from qualified specialists.

In a consultative manner, a specialist in written evidence can conduct a preliminary study of handwriting, signatures and details of documents, including their copies on electronic and paper media, select free samples, recommend expert institutions and specific experts. Legal literature used: 1. Federal Law “On State Forensic Expert Activities in the Russian Federation” No. 73 - Federal Law dated May 31, 2001; 2. “Commentary on the legislation on forensic examination” - rep. ed. Doctor of Law, Professor V.F. Orlova, ed. Norma, M., 2004; 3. Code of Criminal Procedure of the Russian Federation, Civil Procedure Code of the Russian Federation, Arbitration Procedure Code of the Russian Federation, Code of Administrative Offenses of the Russian Federation; 4. “Specialist in Civil and Criminal Procedures” - a manual for forensic experts and judges, ed. Doctor of Law, Professor, Honored Lawyer of the Russian Federation Yu.G. Korukhova; NP "Chamber of Forensic Experts", ed. Press Bureau, M. 2009; Lawyer, forensic expert, member of the chamber of forensic experts of NP "SUDEX" Maslinov Georgy Nikolaevich, research of the handwriting and signatures of the Lord, I used the meaning, legal approach and interpretation of the authors of the literature, while reducing, changing and supplementing the content of the primary sources.