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Criminal procedural status of an expert. Procedural status of a forensic expert

Divorce
26.06.2020

Bulletin of the Samara Humanitarian Academy. Series "Right". 2011. No. 2(10)

PROBLEMS OF CRIMINAL PROCEDURE AND CRIMINALISTICS

PROBLEM ISSUES OF THE PROCEDURAL STATUS OF THE FORENSIC EXPERT AND THE HEAD OF THE EXPERT INSTITUTION

© V. K. Tolokonnikov

Tolokonnikov Valery Konstantinovich

Associate Professor of the Department

criminal law and process

Samara

humanitarian kakdemiya

According to the modern Code of Criminal Procedure of the Russian Federation, the expert is referred to other participants in the criminal procedure, however, the procedural position of the head of the expert institution is not defined. In this regard, this article is devoted to problematic issues, both legislative consolidation of the range of rights and obligations of an expert, and procedural issues related to the assignment of the head of the expert institution to other participants in the criminal slander.

Keywords: procedural status of the legal expert, legislative regulation of the duties of an expert, head of the expert division, duties of the head of the expert division.

The current criminal procedure code of the Russian Federation divides the participants in criminal proceedings into two parties - the prosecution and the defense. Chapter VIII of the Code of Criminal Procedure of the Russian Federation, in particular Art. 57 of the Code of Criminal Procedure of the Russian Federation, refers the expert to other participants in criminal proceedings. However, in accordance with Art. 199 of the Criminal Procedure Code of the Russian Federation, which regulates the procedure for sending criminal case materials for forensic examination, the investigator sends to the head of the relevant expert institution a decision on the appointment of a forensic examination and the materials necessary for its production, which, in turn, entrusts the production of a forensic examination to a specific expert or several experts from the number of employees of this institution and notifies the investigator about it.

Consequently, the head of the expert unit is endowed with certain rights and obligations: in particular, he entrusts the performance of the examination to a specific expert, notifies the investigator about this, returns without execution the decision on the appointment of a forensic examination and materials if there is no expert in a particular specialty in this expert institution, or special conditions for the production of research (parts 1, 2, 3 of article 199 of the Code of Criminal Procedure of the Russian Federation).

The duties of the head of the expert unit also include: ensuring control over compliance with the deadlines for the production of forensic examinations, the completeness and quality of the studies carried out, without violating the principle of independence of the expert; sending the expert's opinion, objects of study and case materials to the body or person that appointed the examination; ensuring the conditions necessary to maintain the confidentiality of research and its results; non-disclosure of information that became known to him in connection with the organization and production of a forensic examination, etc. (Article 14 of the Federal Law of the Russian Federation No. 73 “On state forensic activities in Russian Federation).

In connection with the legislative vesting of the head of the expert institution with the relevant rights and obligations, legislative consolidation is also required, on attributing it to other participants in criminal proceedings.

The system-structural characteristic of the procedural status of an expert consists of the following elements: rights, duties, responsibilities and independence. Let's focus on the first two.

Modern criminal procedural legislation the range of expert rights has been significantly expanded. At the same time, unlike the Code of Criminal Procedure of the RSFSR (Article 82 of the Code of Criminal Procedure of the RSFSR), as well as the new Code of Civil Procedure of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Code of Administrative Offenses, Article 57, current Code of Criminal Procedure RF does not define the terms of reference of the expert. The legislator in Part 4 of Art. 57 of the Code of Criminal Procedure of the Russian Federation, the term “expert is not entitled” is used, that is, prohibitions are indicated on the performance by an expert of certain procedural actions. So, what, in the criminal procedural legislation, is included in the duties (the range of actions assigned to the expert, unconditional for implementation)1 forensic expert? Despite the opinions of some authors that the lack of legislative consolidation of the duties of experts is a progressive approach and corresponds to the concept rule of law 2, the absence of a norm regulating the duties of an expert, in the opinion of certain proceduralists3, and in our opinion, is a significant omission in the Code of Criminal Procedure of the Russian Federation.

1 Ozhegov, S. I. Dictionary Russian / S. I. Ozhegov, N. Yu. Shvedova. M. : Azbukovnik, 1997.

2 Forensic examination in civil, arbitration, administrative and criminal proceedings / E. R. Russian. 3rd ed., add. M. : Norma: INFRA-M, 2011. S. 87.

3 Forensic examination: textbook. allowance / D. A. Sorokotyagina, I. N. Sorokotyagin. 2nd ed. Rostov n / a: Phoenix, 2008. S. 126.

In connection with the above, Article 57 of the Code of Criminal Procedure of the Russian Federation requires a clear legislative regulation of the terms of reference of an expert.

The rights of an expert are provided for in Part 3 of Art. 57 Code of Criminal Procedure of the Russian Federation. At the same time, the rights of an expert are also regulated by Art. 17 of the Federal Law of the Russian Federation "On state forensic activities in the Russian Federation".

In practice, in particular, in criminal and civil proceedings, there are natural difficulties associated with resolving the issue of the admissibility or inadmissibility of expert opinions as evidence.

Firstly, according to Article 17 of the Federal Law of the Russian Federation, the GSED expert has the right to petition the head of the relevant state forensic institution to involve other experts in the forensic examination, if necessary for conducting research and giving opinions. According to the meaning of paragraph 2, part 3, Art. 57 of the Code of Criminal Procedure of the Russian Federation, an expert may apply with the above petition to the body that appointed the examination, that is, the inquirer, investigator, court. Thus, it is a right, but not an obligation, of an expert.

In this regard, the investigator who issued a decision on the appointment of a primary (in particular, not a commission) examination may receive a conclusion of a commission or comprehensive examination, which will be procedural violation requirements of the Code of Criminal Procedure of the Russian Federation, since the production of commission or comprehensive examinations is regulated by the relevant articles of the Code of Criminal Procedure Russian Federation (Articles 200, 201 of the Code of Criminal Procedure of the Russian Federation).

In connection with the foregoing, it is necessary to legislatively fix the exit of an expert with a petition to involve other experts in the production of a forensic examination, as an expert's duty.

Thus, further work is needed to improve regulatory framework criminal procedure legislation regulating the procedural status of a forensic expert.

BIBLIOGRAPHY

1 Ozhegov, S. I. Explanatory dictionary of the Russian language / S. I. Ozhegov, N. Yu. Shvedova. - M.: Azbukovnik, 1997.

2. Forensic examination in civil, arbitration, administrative and criminal proceedings / E. R. Russian. - 3rd ed., add. - M. : Norma: INFRA-M, 2011. - S. 87. .

3. Forensic examination: textbook. allowance / D. A. Sorokotyagina, I. N. Sorokotyagin. - 2nd ed. - Rostov n / a: Phoenix, 2008. - S. 126.

Expert - a knowledgeable person who is not interested in the case, appointed to conduct an examination by examining the submitted materials and giving an opinion that has the value of evidence.

The legal status of an expert as a participant in criminal proceedings is determined in general by Article 57 of the Code of Criminal Procedure. Part 1 of this article defines an expert as a person who has special knowledge and appointed in the manner prescribed by the Code of Criminal Procedure, for the production of a forensic examination and giving an opinion. Part 2 of Article 195 of the Code of Criminal Procedure states that a forensic examination is carried out by state forensic experts and other experts from among persons with special knowledge. The Code of Criminal Procedure does not provide any explanations regarding the state forensic expert, but it is contained in the Federal Law of April 5, 2001 "On State Forensic Activities in the Russian Federation".

In accordance with Article 12 of the said Law, "a state forensic expert is a certified employee of a state forensic institution who performs a forensic examination in order to fulfill his official duties", and Article 13 of this Law establishes that "the position of an expert in state forensic institutions may be held by a citizen of the Russian Federation who has a higher professional education and who has undergone further training in a specific expert specialty in the manner prescribed by regulatory legal acts relevant federal bodies executive power".

As for other experts from among persons with special knowledge specified in Part 2 of Article 195 of the Code of Criminal Procedure, the legislator does not put forward the same requirements for them. As other experts, specialists of higher education institutions, enterprises and institutions with sufficient qualifications to produce the appropriate expertise are usually appointed. In these cases, the investigator and the court are obliged to clarify the necessary data on the specialty and competence of the expert. These data are established during the study by the investigator of special literature, conversations with the alleged expert and other specialists, as well as clarifying the question of whether he is not interested in the outcome of the case; when studying documents proving his identity and confirming his education, specialization, scientific, practical and expert work experience, place of work, position held, etc.

The main circumstances of the commission of the crime, necessary for the expert, are set out in the decision on the appointment of an expert examination.

The rights of an expert granted to him in accordance with Art. 57, give him the opportunity to individualize this study, improve its quality and raise the corresponding professional level. This article clearly defines the boundaries of the expert's participation in the investigation and litigation taking into account the application of special knowledge. He can:

  • 1) to get acquainted with the materials of the criminal case related to the subject of forensic examination. If the submitted information is insufficient for the expert, he has the right to study other materials of the criminal case related to the subject of the expert examination. At the same time, the right of an expert to get acquainted with the materials of the case is limited by the subject of the examination. Otherwise, there may be doubt about the objectivity of the conclusion. The situation in court is different: there the expert participates in the judicial investigation from its beginning, and therefore has full information about it.
  • 2) to petition for the provision of additional materials necessary for giving an opinion, or for the involvement of other experts in the forensic examination;
  • 3) participate with the permission of the inquirer, investigator, prosecutor and court in procedural actions and ask questions related to the subject of forensic examination. The earlier Code of Criminal Procedure of the Russian Federation spoke of the right of an expert to be present during the production of investigative actions, which did not correspond to his actual status. But even now the expert, according to the generally accepted rule for participants investigative action should only be asked through an investigator. In addition, the expert, as a participant in the investigative action, has the right to get acquainted with the protocol of the investigative action and make comments to be entered into it.
  • 4) give an opinion within its competence, including on issues, although not set in the decision on the appointment of a forensic examination, but related to the subject of an expert study. New is the norm on the right of an expert, within his competence, to give an opinion on issues, although not posed in the decision on the appointment of an examination, but related to a specific subject of an expert study. The emergence of this rule reflects what has developed in practice. In these cases, the expert opinion becomes more complete, there is no need to appoint an additional examination.
  • 5) file complaints against actions (inaction) and decisions of the inquirer, investigator, prosecutor and court that restrict his rights;
  • 6) refuse to give an opinion on issues beyond the scope of special knowledge, as well as in cases where the materials submitted to him are insufficient for giving an opinion. Refusal to give an opinion must be declared by an expert in writing stating the reasons for the refusal.

The novelty of Article 57 of the Code of Criminal Procedure of the Russian Federation has a rule on the right of an expert to involve other experts in the examination. New in this legal norm is also the provision that from now on the expert is not only present during the production of investigative actions, but also has the right to participate in them, asking questions to the participants in the investigative action, but only through the investigator. The right of an expert to give an opinion is also his duty.

But this is not all the rights of an expert. The Code of Criminal Procedure of the Russian Federation contains one short story, which, apparently, due to an oversight of the legislator, was not included in part 3 of article 57 of the Code of Criminal Procedure, while in part 4 of article 202 of the Code of Criminal Procedure it is indicated that if obtaining samples for a comparative study is part of a forensic examination , then it is produced by an expert. In this case, the expert reflects information about the performance of the specified action in his opinion. There was no such provision in the Code of Criminal Procedure of the RSFSR, although in investigative and expert practice there were cases when an expert directly received samples for a comparative study, for example, an expert biologist took blood directly from a suspect or victim for biological examination. Of course, this novel can only be assessed positively: as a rule, an expert will receive various samples in a more qualified manner than an interrogator or investigator will.

Along with these rights, the Code of Criminal Procedure of the Russian Federation imposes certain obligations on the expert. Thus, in accordance with Part 4 of Article 57 of the Code of Criminal Procedure, an expert is not entitled to: without the knowledge of the investigator and the court, negotiate with participants in criminal proceedings on issues related to the production of a forensic examination; independently collect materials for expert research, conduct research without the permission of the interrogating officer, investigator, court, which may lead to the complete or partial destruction of objects or changes in their appearance or basic properties; give a deliberately false conclusion; disclose data preliminary investigation who became known to him in connection with his participation in the criminal case as an expert. For giving a deliberately false conclusion and divulging the data of the preliminary investigation, the expert shall bear criminal liability respectively under Article 307 and Article 310 of the Code of Criminal Procedure.

It is interesting to note that when comparing the norms of the Code of Criminal Procedure of the Russian Federation on the rights and obligations of an expert with the Law on State Forensic Activities, which also deals with the rights and obligations of an expert, some discrepancies are found.

It's not just about editorial differences. Basically, the rights and obligations of an expert in both the Code of Criminal Procedure and the Law on State Forensic Expert Activities are set out in approximately the same way. However, there are some differences. So, for example, in the Law we are considering, nothing is said about the right of an expert to self-acquisition samples for comparative study. In fairness, it must be said that the said Law contains a general rule that an expert also has the rights and obligations provided for by the relevant procedural legislation.

In addition, the Law under consideration somewhat expands the rights of an expert when he participates in legal proceedings. So, if the Criminal Procedure Code of the Russian Federation allows the participation of an expert with the permission of the inquirer, investigator, prosecutor and court in procedural actions and granting the right to ask questions related to the subject of forensic examination, then Part 2 of Article 17 of the Law on State Forensic Expert Activities allows the expert to “do subject to entry into the record of an investigative action or court session statements regarding the misinterpretation by the participants in the process of his conclusion or testimony.

Another difference between the Code of Criminal Procedure and the Law under consideration concerns the right of the investigator to be present during the forensic examination and receive explanations from the expert regarding his actions. Part 1 of Article 197 of the Code of Criminal Procedure establishes such a right of the investigator, and at the same time, in accordance with Part 2 of Article 197 of the Code of Criminal Procedure, the fact of the presence of the investigator during the forensic examination is reflected in the expert's opinion.

The law on state forensic activities introduces a completely unreasonable restriction into this understandable and justified norm of the Code of Criminal Procedure. Thus, the Law establishes that “when an expert draws up an opinion, as well as at the stage of a meeting of experts and formulating conclusions, if a forensic examination is carried out by a commission of experts, the presence of participants in the process is not allowed.”

Until this is done, then in accordance with Part 1 of Article 7 of the Code of Criminal Procedure, the court, the prosecutor, the investigator, the body of inquiry and the inquirer are not entitled to apply the federal law, contrary to the Code of Criminal Procedure.

Most often, the expert has a need to participate in interrogations, investigative experiment, inspections, additional inspections of the scene, physical evidence, in obtaining samples for comparative research (for example, handwriting samples). Quite often, the expert simultaneously petitions for an investigative action and asks the investigator to allow him to participate in it.

The prohibition for an expert, bypassing the investigator and the court, to negotiate with the participants in the process on issues related to the conduct of an expert examination is aimed at ensuring compliance with the rule established by law that the expert’s conclusion must be based on the evidence available in the case. Due to this circumstance, the expert is not entitled to independently collect materials for research. But this prohibition does not apply to cases where the materials collected by the expert are an integral part of the expert study.

The expert is not entitled to conduct studies that may lead to the complete or partial destruction of objects or a change in their appearance or basic properties, unless permission has been obtained from the person who ordered the examination. We are talking about objects that are material or written evidence, and therefore may be required at subsequent stages of criminal proceedings. But it must also be taken into account that some research methods cannot be used by an expert without partial or even complete destruction of objects, changing their appearance or basic properties. It is in this case that the consent of the person who appointed the examination is required.

The duties and rights of an expert, listed in Article 57 of the Code of Criminal Procedure, relate to the beginning and completion of his procedural activities and are divided into two groups: those related to the procedural side of his activities; relating to the content and quality of their research.

In case of impossibility for the expert on good reasons give an objective opinion, they draw up an act of refusal to give an opinion with a detailed explanation of the reasons for the refusal.

Study legal status expert as a participant in criminal proceedings would be incomplete if we ignore the relationship between the expert and the head of the expert institution.

In chapter 8 "Other participants in criminal proceedings", the legislator erroneously, in the author's opinion, did not indicate the head of the expert unit as a participant in criminal proceedings and thereby gave rise to a number of questions. The first of them is whether the head of an expert institution is a full-fledged participant in criminal proceedings? And the second - are the relations between an expert and the head of an expert institution procedural and should they be regulated by the Code of Criminal Procedure or a separate law?

Let's consider these questions.

The head of the expert institution, of course, is a participant in criminal proceedings. Article 199 of the Criminal Procedure Code of the Russian Federation states that when conducting a forensic examination in an expert institution, the investigator sends to the head of the relevant expert institution a decision on the appointment of a forensic examination and the materials necessary for its production.

The head of the expert institution, after receiving the decision, entrusts the conduct of a forensic examination to a specific expert or several experts from among the employees of this institution and notifies the investigator thereof. At the same time, the head of the expert institution explains to the expert his rights and responsibilities under Article 57 of the Code of Criminal Procedure. The head of an expert institution has the right to return without execution the decision on the appointment of a forensic examination and the materials submitted for its production, if this institution does not have an expert in a particular specialty or special conditions for conducting research, indicating the motives for which the return is made. In addition, Part 1 of Article 200 of the Criminal Procedure Code of the Russian Federation states that the commission nature of the examination is determined by the investigator or the head of the expert institution, which is entrusted with the production of a forensic examination.

Thus, the legislator endowed the head of the expert institution with a number of rights and assigned certain duties to him in the course of forensic examinations. This circumstance makes it possible to recognize the head of the expert institution as a full participant in criminal proceedings.

The second question should also be answered in the affirmative. The relations between an expert and the head of an expert institution are not just official, but are procedural, as they arise regarding the appointment and production of a forensic examination and should be regulated by the Code of Criminal Procedure.

It cannot be said that these procedural relations between the expert and the head of the expert institution are currently fully regulated in the Code of Criminal Procedure. This omission of the legislator largely makes up for the Law on State Forensic Activities. A number of rights and obligations of the head of the state forensic institution, specified in Articles 14 and 15 of the Law under consideration, are directly related to the relationship between the expert and the head of the expert institution.

Thus, the head of a state forensic institution is obliged: to entrust the production of an examination to a specific expert or a commission of experts; explain to the expert or commission of experts their duties and rights (we note that it is surprising that in accordance with Part 2 of Article 199 of the Code of Criminal Procedure, this duty is assigned to the head of an expert institution, but excluded from the duties of the head of a state forensic institution); ensure control over the timing of the forensic examination, the completeness and quality of the research, without violating the principle of the independence of the expert; provide the expert with equipment, instruments, materials and information support. At the same time, the law prohibits the manager from giving instructions to the expert that prejudge the content of the conclusions on a specific forensic examination.

Obviously, these powers of the head of the state forensic institution should also be enshrined in the relevant norms of the Code of Criminal Procedure of the Russian Federation, since they are directly related to the rights and obligations of an expert and directly affect the quality of forensic examinations.

Thus, I came to the following conclusions.

The Code of Criminal Procedure of the Russian Federation of 2001 for the first time, in accordance with the principle of competition of the parties in criminal proceedings, divided the participants in the process into two parties - the prosecution and the defense. The expert is assigned by the legislator to the group of other participants in the criminal process (Article 57 of the Code of Criminal Procedure), thereby the legislator emphasizes the independence of the expert from both the prosecution and the defense.

This short story of the Criminal Procedure Code of the Russian Federation sharply raises the question of the location of forensic institutions in general and experts in particular in the structure of state bodies. So, V. Bykov believes that in the future the expert service and divisions cannot remain in the same government bodies and departments, together with investigators and interrogating officers, who, according to the Code of Criminal Procedure of the Russian Federation, are a party to the prosecution. For example, in the Ministry of Internal Affairs of Russia there are now interrogators, investigators, and experts. The same situation is observed in other departments that have their own investigative apparatus or are bodies of inquiry. According to V. Bykov, the fact that the expert serves in the same department as the investigator and the interrogating officer is sufficient grounds for challenging such an expert. Thus, clause 2, part 2, article 70 of the Code of Criminal Procedure expressly states that an expert cannot take part in the proceedings in a criminal case if he was or is in official or other dependence on the parties or their representatives. It is clear that when the investigator and the expert are both in uniform and have common boss represented by the head of the District Department of Internal Affairs, the Department of Internal Affairs of the region, the Department of Internal Affairs, the GOM, then it should be recognized that in this case there are indeed grounds for disqualifying the expert. Therefore, the author agrees with the opinion of V. Bykov on this issue.

The current situation is not yet recognized by all scientific and practical workers, but the problem exists, and it should be solved. In the author's opinion, the legislator should implement the norm of the Code of Criminal Procedure that forensic examination is carried out by state forensic experts and other experts from among persons with special knowledge (part 2 of article 195 of the Code of Criminal Procedure of the Russian Federation). Apparently, it is necessary to urgently create a Committee for Forensic Examination of the Russian Federation, which could be entrusted with the main activities for the production of various forensic examinations. Such an independent and independent forensic institution independent of the investigation and inquiry bodies will fully comply with the requirements of the new Code of Criminal Procedure and will ensure that forensic examinations are carried out by experts who are independent of either the prosecution or the defense.

For the first time, the Tax Code of the Russian Federation divided the participants into two sides - the prosecution and the defense. The expert belongs to the group of other participants in criminal procedure activities (Article 57 of the Code of Criminal Procedure of the Russian Federation).

The legislator does not classify the head of an expert institution as “other participants in the process”. At the same time, it is to him that the investigator sends the decision on the appointment of a forensic examination and the case materials related to the expert study (Article 199 of the Criminal Code of the Russian Federation). The head of the expert institution transfers the received decision and the materials of the examination to a specific expert. Thus, the legislator endowed the head of the expert institution specific rights and responsibilities.

The head of the expert institution (organization) is obliged to:

  • upon receipt of a resolution (determination) on the appointment of a forensic examination, entrust its production to a specific expert or a commission of experts;
  • explain to the expert or the commission of experts their duties and rights;
  • warn the expert about the responsibility for giving a deliberately false conclusion;
  • ensure control over compliance with the deadlines for the production of a forensic examination;
  • prevent violation of the principle of expert independence;
  • send the expert opinion, return the objects and materials necessary for the forensic examination to the body or person that appointed the forensic examination;
  • not to disclose information that became known to him in connection with the organization and production of a forensic examination.

The head of the expert institution, the forensic expert must strictly comply with the Law of the Russian Federation of July 21, 1993 No. 5485-1 “On state secret". Thus, the head of an expert institution, a forensic expert are allowed access to state secrets. The legislator in Art. 21 of the Law of the Russian Federation "On State Secrets" defined the conditions for admission to state secrets of officials and citizens.

A person becomes an expert in the procedural sense by the decision of the body in charge of the case. In accordance with Art. 70 of the Code of Criminal Procedure of the Russian Federation, the expert must declare self-withdrawal if he can be challenged on the following grounds: a) in the presence of the circumstances provided for in Art. 61 Code of Criminal Procedure of the Russian Federation. His previous participation in the proceedings on a criminal case as an expert or specialist is not a basis for his challenge; b) if he was or is in official or other dependence on the parties or their representatives; c) if his incompetence is revealed.

Similar grounds are contained in Art. 23 APC RF, Art. 18 Code of Civil Procedure of the Russian Federation, Art. 25.12 Administrative Code of the Russian Federation.

In the arbitration process, the basis for the removal of an expert is the conduct of an audit or inspection, the materials of which became the reason for applying to court of Arbitration(paragraph 2, part 1, article 23 of the Arbitration Procedure Code of the Russian Federation).

For cases of administrative offenses a knowledgeable person cannot be an expert in the case if he participated in it as a specialist.

The structure of the procedural status of a forensic expert includes the following elements: duties; the rights; responsibility; independence; competence (Fig. 3.5).

Duties of a forensic expert. There are no articles in the Code of Criminal Procedure of the Russian Federation that would define the duties of an expert. In Art. 57 of the Criminal Procedure Code of the Russian Federation refers only to the mores of an expert.

E. R. Rossiyskaya believes that this is the most progressive approach to this issue, since it corresponds to the concept of the rule of law.

In our opinion, the absence of a norm regulating the duties of an expert is a serious omission of the Code of Criminal Procedure of the Russian Federation. This is confirmed by the norms of the Code of Civil Procedure of the Russian Federation, the Arbitration Procedure Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation, which stipulate the duties of an expert.

The legislator constantly uses the term "expert has no right", i.e. actually refers to the duties of a forensic expert.

So, according to the Code of Criminal Procedure of the Russian Federation (clause 1, part 4, article 57), the expert not entitled without the knowledge of the investigator and the court, negotiate with the participants in criminal proceedings on issues related to the production of a forensic examination. In civil and arbitration proceedings, the expert contacts the parties and their representatives only by participating in court hearings, asking questions related to the subject of the examination (part 3 of article 85 of the Code of Civil Procedure of the Russian Federation, part 3 of article 55 of the APC of the Russian Federation). According to paragraph 2 of part 5 of Art. 25.9 Administrative Code of the Russian Federation expert not entitled collect materials for the production of a forensic examination without the permission of the relevant law enforcement agencies, i.e. forensic expert not entitled substitute for the investigator and other subjects who appointed the examination.

Indeed, the expert examines only materials related to the subject of the examination and provided by the investigator (court). The difficulty lies in the fact that it is sometimes difficult for the investigator to determine what material of the case is necessary for the expert. When appointing and conducting a forensic handwriting examination, there are practically no such difficulties. In the same time

Rice. 3.5. Scheme of the procedural status of a forensic expert When appointing forensic psychological, forensic psychiatric examinations, questions arise with the volume of presentation of investigation materials or the relevance of certain evidence to the subject of examination.

In practice, they follow the path of providing the expert with all the materials of the case.

It seems that the forensic expert will quickly and professionally solve the problem of providing him with the necessary materials for conducting a forensic examination.

According to Part 1 of Art. 85 of the Code of Civil Procedure of the Russian Federation, the forensic expert is obliged to accept the examination entrusted to him by the court and conduct a full study of the submitted materials and documents; give a reasoned and objective opinion on the issues put before him and send it to the court that ordered the examination; appear when summoned by the court for personal participation in the court session and answer questions related to the research conducted and the conclusion given by it.

If the submitted questions go beyond the expert's special knowledge, or if the materials and documents are unsuitable or insufficient for conducting an examination and giving an opinion, the expert is obliged to send to the court that ordered the examination a reasoned notice in writing about the impossibility of giving an opinion.

The expert ensures the safety of the materials and documents submitted to him for examination and returns them to the court together with a conclusion or a message about the impossibility of giving an opinion.

In Art. 16 of the Law on Forensic Activities, in addition to the above conditions for the impossibility for an expert to give an opinion, two more are noted: if the expert is refused to receive additional materials and if the current level of development of science does not allow answering the questions posed.

The Arbitration Procedure Code of the Russian Federation (Article 55) and the Code of Administrative Offenses of the Russian Federation (Article 25.9) indicate that an expert is obliged to appear when summoned by a judge, body, official, in whose proceedings the case is, and give an objective opinion on the issues raised.

One should agree with the opinion of some lawyers on the expediency of canceling the list of cases when an expert may refuse to give an opinion.

We are talking about experts who are in the service of forensic institutions. A private expert is generally not obliged to conduct an examination and give an opinion. According to Art. 37 of the Constitution of the Russian Federation, art. 4 Labor Code RF "Prohibition of forced labor" forcing persons to produce against their will is prohibited.

The most important duty of a forensic expert is set out in par. 2 hours 1 tbsp. 85 Code of Civil Procedure of the Russian Federation and par. 4 hours 1 tbsp. 16 of the Law on Forensic Activities is sending a reasoned notice to the court in writing about the impossibility of giving an opinion.

According to par. 5 hours 1 art. 16 of the Law on forensic activities, part 2 of Art. 85 Code of Civil Procedure of the Russian Federation, and. 5 hours 4 tbsp. 57, Art. 161 of the Criminal Code of the Russian Federation, the duty of a forensic expert is not to disclose information that became known to him in connection with the production of a forensic examination.

The information that a forensic expert should not disclose are: data obtained in the course of forensic, forensic psychiatric, technical and forensic, handwriting and other examinations; information relating to illness, pregnancy, personal life of the subject and other persons.

Currently law enforcement and especially forensic experts (since they do not have a sufficiently deep knowledge in the field of jurisprudence, including in the field of criminal, civil, arbitration processes) experience great difficulties in preparing objects (material) for a forensic examination, in an expert study, evaluating an expert's opinion.

However, no one freed the expert from understanding procedural rules regulating forensic activities. The forensic expert is obliged to know the norms of legislation, instructions, regulations and other documents regulating expert activities and legal status expert. Constant changes in legislation, confusion in various procedural documents do not allow the forensic expert to purposefully and freely operate on certain legal regulations. S. A. Smirnova quite rightly proposes a way out of this situation: “For a confident lawful conduct an expert needs a reliable and compact legal guide, a kind of universal Expert Code, the role of which cannot be performed by any of the seven procedural laws- due to limited subject matter legal regulation each, not even the totality of seven laws - due to their mutual inconsistency, the presence of gaps and too extensive subject of legal regulation.

Serious legal support requires the activities of a private forensic expert. In Art. 41 of the Law on Forensic Expert Activities contains an indication that forensic examination can be carried out outside state forensic institutions by persons with special knowledge in the field of science, technology, art or craft, but who are not state forensic experts. The following articles of the Law on Forensic Expert Activities apply to the activities of experts: 2-4, 6-8, 16 and 17, part 2 of Art. 18, 24 and 25.

It seems that the activities of private experts should be covered by Art. 3 and 5 of the Law on forensic activities. In addition, further work is needed to improve legislative framework governing the activities of private experts.

The rights of a forensic expert. According to Art. 17 of the Law on Forensic Expert Activities, an expert has the right to:

  • to petition the head of the relevant state forensic institution to involve other experts in the forensic examination, if necessary for conducting research and giving opinions;
  • make statements to be included in the minutes of the investigative action or court session regarding the misinterpretation by the participants in the process of his conclusion or testimony;
  • appeal in accordance with the procedure established by law against the actions of the body or person who appointed the forensic examination, if they violate the rights of the expert.

The expert also has the rights provided for by the relevant procedural legislation. According to Art. 57 Code of Criminal Procedure, art. 85 Code of Civil Procedure of the Russian Federation, Art. 55 of the Arbitration Procedure Code of the Russian Federation, the expert has the right to:

  • get acquainted with the materials of the case relating to the subject of the examination;
  • to apply for the provision of additional materials necessary for giving conclusions, or for the involvement of other experts in the examination;
  • participate with the permission of the investigator, prosecutor and court in the proceedings and ask questions related to the subject of the examination;
  • give an opinion within its competence, including on issues, although not set in the decision on the appointment of an examination, but related to the subject of an expert study;
  • file complaints against actions (inaction) and decisions of the inquirer, investigator, prosecutor and court that restrict his rights;
  • refuse to give an opinion on issues beyond its competence, as well as in cases where the submitted materials are insufficient for giving an opinion.

The expediency of involving other experts in the performance of a forensic examination is confirmed by Part 3 of Art. 85 Code of Civil Procedure of the Russian Federation and paragraph 2, part 3, Art. 57 Code of Criminal Procedure of the Russian Federation. Unfortunately, there is no such provision in the Arbitration Procedure Code of the Russian Federation and the Code of Administrative Offenses of the Russian Federation. E. R. Rossiyskaya writes that “in cases where an expert does not consider himself competent to resolve issues of expertise, he should not apply for the involvement of additional other experts, but generally refuse to produce it.”

It seems that such a statement is too categorical. In cases where the object of expert research is the human psyche, simultaneous (complex) use of the help of an expert psychologist and an expert psychiatrist is necessary.

This is due to the following reasons:

  • a) a versatile approach to the subject and phenomenon under study;
  • b) prompt solution of several expert tasks simultaneously;
  • c) effective use of modern scientific and technical capabilities.

Conducting a joint study by representatives of various fields of knowledge and assessing the identified signs make it possible to specify the answers to the questions posed to a greater extent than independent studies of the same signs carried out by each expert separately.

In the process of joint research, the goal of the research is common for experts, and the ways to achieve results can be different. The main purpose of a comprehensive examination is to resolve issues related to the borderline knowledge of experts, when a poly-aspect (holistic) view of the object under study is compiled.

According to Art. 200 Code of Criminal Procedure of the Russian Federation, art. 84 APC RF, art. 83 Code of Civil Procedure of the Russian Federation, an expert who disagrees with the opinion of other experts draws up his own (separate) opinion and signs it.

In a multi-object examination, experts can actively use various instruments, equipment, research methods and techniques.

In Art. 17 of the Law on Forensic Activities, it is noted that an expert has the right to make a statement regarding the misinterpretation of the conclusion or his testimony during interrogation. The rule is timely and correct. However, none of procedural codes RF forensic expert is not endowed with such a right. Therefore, all comments made (in writing or orally) can be left without consideration. The expert can state his objections during his interrogation by the investigator or the court (Articles 205, 282 of the Criminal Procedure Code of the Russian Federation), but formally this is not a statement.

The Law on Forensic Activities does not mention the right of an expert to independently obtain samples for comparative research, but notes that an expert has the rights and obligations provided for by the relevant procedural legislation. So, in part 4 of Art. 202 of the Code of Criminal Procedure of the Russian Federation states that “if obtaining samples for a comparative study is carried out as part of an examination, then it is carried out by an expert. He mentions this in his conclusion.

In paragraph 3, part 3 of Art. 57 of the Code of Criminal Procedure of the Russian Federation refers to granting the right to an expert to ask questions related to the subject of the examination.

The legislator granted the right to experts to limit the presence of participants in the process during the forensic examination. “When an expert draws up a conclusion, as well as at the stage of a meeting of experts and formulating conclusions, if a forensic examination is carried out by a commission of experts, the presence of participants is not allowed” (Article 24 of the Law on Forensic Activities).

  • Russian E. R. Judicial examination in civil, arbitration, administrative and criminal proceedings. S. 79.
  • In the Code of Criminal Procedure of the RSFSR 1960 in Art. The 82 responsibilities of the expert were clearly spelled out.
  • Smirnova S. A. Forensic examination on turn of the XXI century: state, development, problems. S. 102.
  • Russian E. R. Judicial examination in civil, arbitration, administrative and criminal proceedings. S. 98.