Article 195 of the Code of Criminal Procedure of the Russian Federation. The procedure for appointing a forensic examination

1. Having recognized the necessity of ordering a forensic examination, the investigator makes a decision on this, and in the cases provided for in paragraph 3 of part two of Article 29 of this Code, initiates a petition before the court, which indicates: 1) the grounds for ordering a forensic examination; 2) last name, first name and patronymic of the expert or the name of the expert institution in which the forensic examination should be carried out; 3) questions posed to the expert; 4) materials made available to the expert.

2. Forensic examination is carried out by state forensic experts and other experts from among persons with special knowledge.

3. The investigator familiarizes the suspect, accused, his defense attorney, the victim, his representative with the decision on ordering a forensic examination and explains to them the rights provided for in Article 198 of this Code. A protocol on this is drawn up, signed by the investigator and persons who are familiar with the decision.

4. A forensic examination in relation to a victim, except for the cases provided for in paragraphs 2, 4 and 5 of Article 196 of this Code, as well as in relation to a witness, is carried out with their consent or the consent of their legal representatives, which is given by these persons in writing. A forensic examination may be ordered and carried out before the initiation of a criminal case.

Article 195 of the Code of Criminal Procedure of the Russian Federation. The procedure for appointing a forensic examination (current version)

1. On the concept of expertise, see commentary. to paragraph 49 of Art. 5.

Expertise as the main form of using special knowledge must be distinguished from other forms: 1) the use of special knowledge by the investigator himself, for example, when removing traces during investigative actions; 2) assistance from a specialist (Article 58 of the Code of Criminal Procedure), which, in turn, may consist of: a) assistance in the detection, securing and seizure of objects and documents, the use of technical means in the study of case materials. Such actions are not independent research and are carried out as part of other investigative actions; b) assistance in asking questions to the expert. This activity constitutes an element of the purpose of the examination, being its preparatory stage; c) giving explanations on special issues in the form of testimony or written opinions; 3) use of the results of so-called non-procedural special studies (acts of departmental examinations, for example, commodity examinations; audits, audits, calculation of the cost of repairing a damaged car, etc.). All such studies take place outside the criminal procedural form, and their results are attached to the case as other documents (Article 84 of the Code of Criminal Procedure). Such studies, unlike examinations, are not provided with procedural conditions and guarantees, therefore, after the initiation of a criminal case, a forensic examination can, and in some cases should, be appointed instead.

Such other documents and written conclusions of a specialist should be distinguished from special studies conducted before the initiation of a criminal case, mainly on the instructions of the operational investigative units of the investigative bodies (so-called express studies), for example, to determine whether the seized item is a bladed weapon, substance - to drugs, etc. Such studies are usually carried out by staff members of the forensic departments of the investigative bodies. In our opinion, such studies are classified as operational investigative activities (“research of objects and documents” - clause 5, part 1, article 6 of the Federal Law “On operational investigative activities”), the results of which cannot be considered evidence even in the form of other documents. After all, recognizing their evidentiary value means agreeing to conduct examinations in person before initiating a criminal case, which would devalue the legal ban on this type of investigative actions here. The significance of such express research is only to establish the grounds for initiating (or refusing to institute) a criminal case. They cannot be considered as expert opinions (Part 3 of Article 80 of the Code of Criminal Procedure), because according to the direct instructions of Part 1 of Art. 58 of the Code of Criminal Procedure, a specialist is a person involved in participation only in procedural, i.e. actions provided for by the criminal procedural law, and express research is unknown to him. This conclusion is also true for the so-called acts of forensic medical examinations, which were previously usually carried out before the initiation of relevant criminal cases on behalf of the preliminary investigation authorities. The only source of regulation for such “examinations” was Order of the USSR Ministry of Health of December 11, 1978 N 1208 “On the introduction into practice of the all-Union Rules for the forensic medical determination of the severity of bodily injuries.” It should, however, be taken into account that on August 17, 2007, the Decree of the Government of the Russian Federation approved new Rules for determining the severity of harm caused to human health, which do not provide for such action. In addition, it should be taken into account that criminal procedural relations cannot be regulated by by-laws. These acts cannot be considered the results of non-procedural departmental research, which, as stated above, can be accepted in the process as other documents, since objectively, being appointed not separately from the criminal process, but at the request of the preliminary investigation authorities, they actually duplicate the conclusions of the court -medical experts.

When applying the norms of Chapter 27 of the Code of Criminal Procedure of the Russian Federation, it is necessary to take into account the Federal Law of May 31, 2001 N 73-FZ “On State Forensic Expert Activities in the Russian Federation”, which is subject to application to the extent that does not contradict the Code of Criminal Procedure.

2. An examination is an investigative action, therefore it is subject to the general rules for conducting investigative actions. See comment. to Art. 164. The basis for ordering an examination is the need to establish facts using an expert’s opinion - a special source of evidence. The issue of this necessity is decided by the entity conducting the proceedings. However, in some cases, the appointment of an examination is mandatory. See comment. to Art. 196. Special conditions for ordering an examination are the sufficiency of objects for research, the availability of scientifically based expert methodology on the subject and, as a general rule, the consent of the witness and the victim to their examination.

3. Part 1 of the commented article imposes special requirements on the content of the decision on the appointment of an examination (its motivation). In this case, special attention should be paid to the following points: a) the questions posed to the expert must fully cover the fact being established, have an unambiguous wording and do not go beyond the expert’s special knowledge. To do this, it is useful to familiarize yourself with the methodological recommendations for this type of examination and get advice from the expert or specialist himself (Part 1 of Article 58 of the Code of Criminal Procedure); b) the resolution must indicate the individual characteristics of the objects of examination and their packaging in order to eliminate doubts about the substitution of objects; c) if the examination is carried out outside an expert institution (Part 5 of Article 199 of the Code of Criminal Procedure), then the investigator first establishes the competence of the expert and the absence of grounds for his challenge, which is also reflected in the case materials and in the decision on the appointment of the examination.

4. A state forensic expert is a certified employee of a state forensic institution who carries out a forensic examination in the performance of his official duties (Article 12 of the Federal Law “On State Forensic Expert Activities...”). For forensic institutions, see comment. to clause 60 art. 5. An expert examination in a criminal case may also be entrusted to “another expert from among persons with special knowledge.” This can be a “private” expert (an employee of a non-state expert institution, a specialist with an appropriate license) or any other individual who has the necessary knowledge. At the same time, the state forensic expert does not have the right to carry out forensic expert activities as a non-state expert, accept orders to conduct a forensic examination directly from any bodies or persons, with the exception of the head of the state forensic expert institution (Article 16 of the Federal Law “On State Forensic Expertise”). expert activity.."). Forensic psychiatric examinations are permitted only in state forensic institutions that fall under the jurisdiction of the federal executive body (Part 5, Article 11 of the Federal Law “On State Forensic Expert Activities...”).

5. The decision to order an examination must be familiarized with: a) each suspect and accused in this case and their defense attorneys. Familiarization with the decision must take place even when the examination was carried out before the appearance of the suspect and accused in the case. For information on the rights of these persons upon review, see the comment. to Art. 198; b) the victim in respect of whom the examination has been ordered, his representatives (Part 2 of Article 198 of the Code of Criminal Procedure); c) the victim, civil plaintiff, civil defendant and their representatives, if the examination was ordered at their request (clause 9, part 2, article 42; clause 10, part 4, article 44; part 2, article 159 of the Code of Criminal Procedure); d) a lawyer and legal representatives of the witness, if the examination is carried out in relation to him. Familiarization with the resolution on the appointment of an examination involves some study of the objects of the examination, as well as data indicating the proper qualifications of the expert.

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See: Determination of the Constitutional Court of the Russian Federation of December 18, 2003 N 429-O.

6. The commented article does not directly provide for the possibility of forced expert examination of a witness. However, it competes with the content of Part 5 of Art. 56 of the Code of Criminal Procedure, which provides for the compulsory examination of a witness in cases where it is necessary to assess the reliability of his testimony (Part 1 of Article 179 of the Code of Criminal Procedure). A comparison of these norms and the absence of special instructions on forced examination of the victim (Article 42 of the Code of Criminal Procedure) lead to the conclusion that the norm of Part 5 of Art. 56 of the Code of Criminal Procedure as special. At the same time, to assess the reliability of a witness’s testimony, the appointment of an examination is optional (Article 196 of the Code of Criminal Procedure).

Comment source:

Ed. A.V. Smirnova “COMMENTARY ON THE CRIMINAL PROCEDURE CODE OF THE RUSSIAN FEDERATION” (ARTICLE BY ARTICLE), 5th edition

SMIRNOV A.V., KALINOVSKY K.B., 2009

Everything about criminal cases

Go to the text of the Code of Criminal Procedure

Url Additional information:

Appointment of examination

- part 1 195 of the Code of Criminal Procedure

the examination is ordered by the investigator

- part 1 195 of the Code of Criminal Procedure

When examining in a hospital, court permission is required

- Part 4 195 Code of Criminal Procedure

the examination may take place before the initiation of the case

Resolution on appointment of examination

- Clause 1 Part 1 195 Code of Criminal Procedure

the grounds for ordering a forensic examination are indicated

- clause 2 part 1 195 Code of Criminal Procedure

indicate the full name of the expert or the name of the institution

— clause 3, part 1, 195 Code of Criminal Procedure

the questions posed to the expert are indicated

— clause 4 part 1 195 Code of Criminal Procedure

the materials provided to the expert are indicated

Who performs the examination

- Part 2 195 Code of Criminal Procedure

examination is carried out by state forensic experts

- Part 2 195 Code of Criminal Procedure

the examination is carried out by other experts

Familiarization with the decision on appointment

- Part 3 195 Code of Criminal Procedure

the investigator explains the rights provided for in
198 Code of Criminal Procedure
- Part 3 of 195 Code of Criminal Procedure

introduces the decision of the accused

- Part 3 195 Code of Criminal Procedure

introduces the defender's decision

- Part 3 195 Code of Criminal Procedure

introduces the victim's decision

- Part 3 195 Code of Criminal Procedure

a protocol on familiarization is drawn up

Voluntary nature of the examination

- Part 4 195 Code of Criminal Procedure

written consent of the victim, witness is required

- Part 4 195 Code of Criminal Procedure

voluntary examination of the victim

- Part 4 195 Code of Criminal Procedure

voluntary examination of a witness

Plenum of the Supreme Court

Plenum

from 12/21/2010 N 28 appointment of examination at the judicial stage

Typical violation

Familiarization with the resolution

after the examination, the significance of the violation

Article 195 of the Code of Criminal Procedure. The procedure for appointing a forensic examination

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- Part 2 159 Code of Criminal Procedure

a request for an examination cannot be refused

— clause 1

Plenum No. 28 examination is carried out when research is required

1) Having recognized the necessity of ordering a forensic examination,

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- clause 3.1

Plenum No. 1, refusal to order an examination cannot be appealed under
Article 125 of the Code of Criminal Procedure
- the investigator makes a decision on this,

- and in cases provided for in paragraph 3 of Part 2 of 29 of the Code of Criminal Procedure, initiates a petition before the court,

which indicates:

1). grounds for ordering a forensic examination;

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— clause 2 part 1 198 Code of Criminal Procedure

the right to challenge an expert

— clause 3

Plenum No. 28 upon application are required to provide full name. expert

2). last name, first name and patronymic of the expert,

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— clause 3

Plenum No. 28, the name of the institution is required in the resolution

or the name of the expert institution in which the forensic examination should be carried out;

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- clause 4 part 1 198 Code of Criminal Procedure

Parties may submit additional questions

— clause 4

Plenum No. 28, legal questions cannot be asked of an expert

I). Questions outside the scope of the expert are prohibited

No questions asked

outside the expert's area of expertise

II). Legal questions are prohibited

No questions asked

of a legal nature, the expert does not have the right to answer them

3). questions posed to the expert;

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Materials

— clause 2, part 3 57 Code of Criminal Procedure

the expert's right to request additional materials

— clause 4 part 1 195 Code of Criminal Procedure

the materials provided to the expert are indicated

- part 1 199 of the Code of Criminal Procedure

the investigator sends the decision and materials

Insufficient materials

(from the BOOK “
Methodology according to 264 CC
”)

Insufficient materials

for the expert - the examination is unreasonable

rights
to collect additional materials
Self-collection

materials - prohibited (
clause 2, part 3 57
and
clause 2, part 4 57 of the Code of Criminal Procedure
)

4). materials made available to the expert.

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- P.5

Plenum No. 28 on another territory, not to a state institution, to another person

2) Forensic examination is carried out:

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— clause 2

Plenum No. 28 state expert institutions

- state forensic experts;

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— clause 2

Plenum No. 28 other (non-state) experts

— clause 3

Plenum No. 28 non-state examination, documents are requested

- and other experts from among those with special knowledge.

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— clause 9

Plenum No. 28 familiarization before the examination

Typical violation

Familiarization with the resolution

after the examination, the significance of the violation

3) The investigator introduces
the decision to order a forensic examination and explains the rights provided for in 198 Code of Criminal Procedure:
Url Additional information:

- Part 1 198 Code of Criminal Procedure

rights of the parties when ordering an examination

- suspect, accused,

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— clause 4, part 3, 49 Code of Criminal Procedure

a defense attorney is required from the moment of the psychiatric examination

- his protector,

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- clause 11 part 2 42 Code of Criminal Procedure

the right of the victim to become familiar with the decision

— clause 8

Plenum No. 28 has the right to get acquainted with the resolution on the examination

- the victim, his representative,

A protocol on this is drawn up, signed by the investigator and persons who are familiar with the decision.

4) Forensic examination is carried out with the consent (or consent
of legal representatives), which is given by these persons in writing in relation to:
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- clause 4, part 5 42 Code of Criminal Procedure

the victim has no right to evade the examination

- Part 7 42 Code of Criminal Procedure

responsibility of the victim for evading the examination

— clause 7

Plenum No. 28 requires the consent of the victim (general rule)

- the victim, with the exception of cases provided for in paragraph 2, paragraph 4, paragraph 5 of 196 Code of Criminal Procedure,

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- Part 5 56 Code of Criminal Procedure

the witness has the right to refuse the examination (except for
Part 1 179 of the Code of Criminal Procedure
)

— clause 7

Plenum No. 28 requires the consent of the witness (general rule)