Rights and responsibilities of a specialist in criminal proceedings

Legal advice on comments to Art. 57 Code of Criminal Procedure of the Russian Federation

• Where can I find a current list of forms (with samples) of criminal procedural documents? This is meant as previously in force in ch. 57 of the Code of Criminal Procedure of the Russian Federation, a list of procedural documents. Thanks in advance for your insightful answer!! Lawyer's answer:
  The list of forms (with samples), previously in force and annex to the Code of Criminal Procedure, has been excluded. Until now, since the exclusion of those forms of procedural documents, there have been NO approved, legal forms. I know from experience that even in one subject of the federation, in its different territories there are completely DIFFERENT forms for the same procedural actions. Precisely because of the lack of strictly regulated ones.

Legal commentary on Article 58 of the Code of Criminal Procedure of the Russian Federation

The participation of a specialist in procedural actions may be required at any stage of the criminal process:

• search and discovery of evidence;
• correct seizure of found material evidence;
• competent attachment of evidence to the case materials without compromising its appearance, condition and characteristics;
• seizure of objects and documentation during searches;
• use of technical means in court;
• giving professional explanations to the court and participants in the process about situations, incidents, mechanisms, etc.

Accordingly, the involvement of a specialist in the process is possible both at the stage of inquiry or investigation, and at the time of consideration of the criminal case in court.

Involvement must be driven by the need to obtain clarification or guidance.

Circumstances to be clarified:

1. Circumstances of the crime.
2. The means and method of committing an illegal act.
3. The need to discover and seize evidence.
4. Explanation of technical means and the possibilities of their use to commit a criminal act.
5. A request by one of the parties to obtain a written opinion from a specialist in the scientific field.

The legal commentary focuses on the possibility of involving a teacher or psychologist as a specialist. . As an example, if there is a need to interrogate a minor or a person with a mental disability

The participation of this category of professionals is mandatory to protect the rights of incapacitated citizens or persons with limited legal capacity, as well as for the purpose of correct interpretation by the court or the investigation of their explanations.

As an example, if there is a need to interrogate a minor or a person with a mental disability. The participation of this category of professionals is mandatory to protect the rights of incapacitated citizens or persons with limited legal capacity, as well as for the purpose of correct interpretation by the court or the investigation of their explanations.

The Supreme Court's recommendation regarding the involvement of a specialist and expert explains that in cases where the expert opinion obtained is not sufficient to resolve all issues, the parties or the court, on their own initiative, can attract a specialist. As a rule, the form of a standard conclusion does not allow a comprehensive explanation of the circumstances of the case. The expert is located remotely, works with the materials that are provided to him for examination and answers only questions posed in writing.

Calling a specialist and communicating with him directly, both during the preliminary investigation and at the consideration stage, allows you to get much more answers. By working with a person who has the necessary technical or scientific knowledge, you can immediately get rid of existing doubts among all participants in the case.

The specialist’s explanations are not included in any form or conclusion. They are drawn up in a standard protocol of an interrogation or court session, as with witnesses. The recommendations and explanations of this participant can be drawn up as a written conclusion, a sample of which is explained by the court.

The peculiarity of a specialist’s conclusion is that he expresses his own, purely personal opinion, which consists of the special knowledge that he possesses. The assessment he provides will certainly play a role in the process, however, it cannot be called indestructible, unlike an examination.

Still, it is much easier to question the word of this participant. The specialist is not allowed to take away any case materials or receive items for carrying out technical work in laboratory conditions. His explanations are more methodological than practical. It is difficult to call a specialist a practitioner, because he does not conduct any technical and laboratory analyzes and comparisons. His words are recorded by other participants in the criminal process: interrogators, investigators or the court.

When a problem arises due to a lack of knowledge or explanations, either party can exercise the right to call a specialist if his explanations fill the gap of missing information.

It is clear from the procedural status that even if the case is considered with the participation of a specialist, this cannot replace the expert’s opinion, his explanation and conclusions.

Involving other citizens

The expert may request the involvement of other persons in the study. In this case, we are not talking about situations where the subjective or subject level of a citizen does not correspond to the subject of the survey or is insufficient to answer the questions. The involvement of other citizens is allowed if they have knowledge on the same topic, and their participation will ensure faster and more correct formulation of conclusions. If the expert decides that drawing up a conclusion requires not a homogeneous, but a comprehensive study, then he should not apply for the involvement of other persons. In this situation, he must refuse to carry out instructions from authorized employees. After this, a comprehensive study is prescribed. The refusal may concern all or only some issues that are beyond the competence of the person.

Commentary to Art. 59 of the Criminal Procedure Code of the Russian Federation

Comments on the articles of the Code of Criminal Procedure will help you understand the nuances of criminal procedure law.

1. The activities of a translator are determined by the presence of the constitutional principle of equality of citizens regardless of nationality and language, the right to use their native language and choose the language of communication (Articles 19, 26 of the Constitution). In accordance with this, the Code of Criminal Procedure establishes rules on the language of legal proceedings (Article 18) and at the same time provides for the right of persons participating in the case to exercise their rights in criminal proceedings in their native language or another language that they speak, as well as to use the services of an interpreter free of charge.

2. In cases provided for by the Code of Criminal Procedure, investigative and judicial documents are subject to mandatory delivery to the suspect, accused, as well as other persons participating in the criminal process. These documents must be translated into their native language or into a language spoken by the relevant participants in criminal proceedings (see commentary to Article 18).

3. Part 2 of the commented article establishes that a translator is appointed only by the person responsible for conducting a criminal case. The person appointed as an interpreter in accordance with Part 2 is a participant in the criminal process, endowed with procedural rights (Part 3) and responsibilities (Part 4) corresponding to his role. Before appointing a translator (by issuing a resolution, ruling), the investigator, investigator, prosecutor, judge, court must make sure that the person appointed as translator speaks the language the knowledge of which is necessary for translation. Then the subjects responsible for the conduct of the criminal case must find out whether there are circumstances that give reason to believe that the person appointed as the translator is directly or indirectly interested in the outcome of the case.

4. The circumstances that exclude the translator from participation in the case are determined by Art. 61 Code of Criminal Procedure. If these circumstances exist, during the investigation, during the preliminary investigation and in court, the translator may be challenged (see commentary to Article 69).

5. A person’s performance of the functions of a translator is incompatible with his participation as another subject of criminal proceedings. The Supreme Court of the Russian Federation recognizes significant violations of the criminal procedural law, entailing the cancellation of the sentence, in the following cases: a) consideration of the case in the absence of an interpreter, if at least one of the judges does not speak the language of the proceedings; b) combining the functions of a translator and an investigator by one person (BVS RSFSR. 1984. N 7. P. 7).

6. An explanation of the provisions provided for in parts 3 – 5 of the commented article and a warning about liability for incorrect translation are made before the person begins to perform the functions of a translator, as noted in the relevant protocols. In court proceedings, the judge explains to the translator his rights and responsibilities as one of the priority actions in the preparatory part of the trial (Article 263 of the Code of Criminal Procedure).

7. The participation of an interpreter in investigative actions is reflected in the relevant protocols, which he signs after familiarizing himself with their contents (Part 5 of Article 166 of the Code of Criminal Procedure).

8. The duties of an interpreter, in addition to those already mentioned, include: appearing when called by officials responsible for the proceedings; execution of translation orders during investigative and judicial actions, as well as procedural documents.

9. Depending on the nature of the offenses committed, various types and measures of liability may be applied to the translator, including for knowingly incorrect translation and disclosure of preliminary investigation data - criminal liability.

10. Judicial practice recognizes as significant violations of the criminal procedural law, entailing the reversal of the sentence, the following facts: a) conducting a preliminary investigation or trial without the participation of an interpreter, if the accused (defendant) does not speak the language in which the proceedings are conducted (BVS RSFSR. 1984. N 7. P. 10); b) failure to provide translation to the defendant of the testimony of witnesses interrogated at the court hearing (BVS RSFSR. 1974. N 10. P. 12); c) failure to provide an indictment translated into a language spoken by the defendant (BVS RSFSR. 1971. No. 9. P. 9).

11. The law provides for the translator’s right to remuneration for performing duties and reimbursement of expenses in connection with appearing when summoned by investigative and court authorities. Amounts paid to the translator are included in the procedural costs. Procedural costs associated with the participation of an interpreter in criminal proceedings are reimbursed from the federal budget.

Responsibilities

By receiving the status of a forensic expert, a citizen also acquires a number of responsibilities that he must fulfill as part of his participation in a specific criminal case.

The first and most difficult task is a detailed familiarization with the case materials provided to him. In some cases, this is very difficult, since the investigator or inquiry officer, not being experts in a scientific matter, usually provides very impressive amounts of information that are not needed to carry out the examination.

The following points are also mandatory:

1. Do not conduct dialogues with other participants in criminal proceedings without knowledge and permission.
2. Gather additional information on his own initiative, even if, in his opinion, it is necessary. The expert must obtain permission from the person who appointed the relevant work.
3. Even if it is necessary to provide the most complete conclusion, the specialist must obtain permission to carry out actions that could lead to the destruction or damage of research objects.
4. An entity performing expert functions is obliged to keep the information received secret. He gives a subscription about this in accordance with the norms of the Code of Criminal Procedure.
5. The expert’s conclusion must not contain false information.
6. An expert does not have the right to refuse to appear at the request of persons conducting an investigation into a case to which he is involved.

Provided that the subject carrying out the examination has been explained his responsibilities and the consequences that arise as a result of non-compliance, violation of the above, provides for punishment.

Thus, indicating false information in the conclusion is punishable in accordance with Article 307 of the Criminal Code of the Russian Federation and may entail a fine of up to 80 thousand Russian rubles. Corrective labor assigned for a period of two years is also possible. If such a conclusion led to the accusation of a subject who did not commit a crime, then the expert is sentenced to forced labor or imprisonment.

You can avoid criminal liability by reporting your illegal actions to change the conclusion before sentencing.

When an expert disseminates information obtained during his work on a case (in a personal conversation with someone or through the media, for example, in a newspaper), the following may follow:

• fine;
• correctional work;
• mandatory work;
• arrest.

Punishment in the form of a monetary penalty may be imposed on an expert if his work was carried out with certain violations.

In this way, the legislator strives to make the expert’s assessment as honest and objective as possible.

Another unique obligation is imposed on the expert by Article 205 of the Code of Criminal Procedure. According to it, a specialist must, if necessary, participate in the interrogation as an interrogated party. His task in this case is to provide explanations regarding the conclusion he has made.

It is prohibited to interrogate an expert until he has documented his conclusions. It is also not allowed to ask him questions that go beyond the scope of the work he is doing.

This rule also applies when new circumstances become known to the specialist. The expert has the right to declare his intention to provide such information independently. He also has the right to remain silent about it.

A controversial issue related to the work of an expert is the possibility of bringing an expert if he did not voluntarily appear when summoned.

According to Article 113, the following may be subjected to such a procedure:

• witness;
• accused;
• suspect;
• the victim himself.

Some researchers call an expert a “knowledgeable witness” and say that as such he may well be subject to prosecution. On the other hand, there is no official status of “knowledgeable witness” in criminal law, and an expert is called an expert, not a witness. At the same time, he does not have the right to evade appearing when summoned. The method of implementing this obligation in the absence of voluntary fulfillment is not regulated by law. Therefore, he is chosen by an authorized person.

The need for special knowledge requires that an expert of the Criminal Procedure Code of the Russian Federation be involved in the case. The law defines as such a person who is not only endowed with the necessary experience, but also appointed to the position of expert in a specific case. Only the appointment of a subject as a person authorized to do so imposes on the citizen responsibilities defined by law and gives him certain rights.

Expert's responsibility

In case of violation of Art. 307 of the Criminal Code of the Russian Federation, an expert can be sentenced to various preventive measures - from paying a fine to imprisonment. The note to it states that if a specialist himself admits that he provided false information before the court made a decision on his case, then he is exempt from punishment.

Art. 310 of the Criminal Code of the Russian Federation also provides for various penalties: payment of a fine, correctional or compulsory labor, and the most severe of them is arrest.

Examples of judicial practice

For modern criminal proceedings, the involvement of specialists cannot be called a rare phenomenon.

Here are just some examples of this:

1. A search was ordered in the house of citizen N., suspected of fraud, to search for documents confirming fraud in the real estate market. To have an accurate idea of ​​whether specific documents are relevant to the criminal case, a specialist was brought in.
2. Citizen I., suspected of robbery, has not reached the age of majority. Thus, his interrogation could only be carried out in the presence of a teacher. Therefore, it was necessary to involve a specialist in the relevant field.
3. When considering a criminal case in which citizen B. was accused, it was necessary to involve a specialist in the field of functioning of PC software. The fact is that the tool for implementing the fraudulent scheme used by citizen B. was a computer program.

Every year the number of cases of involving specialists in criminal proceedings increases.

Does the involvement of specialists contribute to the successful resolution of a criminal case?

Using the services of a specialist in the course of conducting a criminal case allows you to clarify all the unclear points that the parties to the process and the court cannot understand due to the lack of special knowledge in a particular area. Thus, the involvement of specialists contributes to the successful resolution of criminal cases.

A specialist is a neutral subject in criminal proceedings. His testimony and conclusions can contribute to both the acquittal of the accused and his conviction. In some cases, the testimony and conclusions of a specialist can influence the amount of liability awarded.

Who can be involved as a specialist?

Any person who has knowledge in a particular area can be involved as a specialist.

Examples include the following specialists:

• a criminologist who helps the investigator examine the crime scene and discover evidence;
• a forensic physician who helps examine the corpse and gives advice to get answers to traditional questions (time of death, cause, etc.);
• a sapper who helps detect hidden ammunition and weapons;
• a connoisseur of art, drugs, psychotropic substances, etc., who helps find and seize what is needed.

The list can be continued, and it will include hundreds of positions, because there are many areas of knowledge in which the parties to the criminal process and the court are incompetent.

Competence

An entity involved in proceedings in accordance with Art. 57 of the Code of Criminal Procedure of the Russian Federation, must have knowledge in the scientific, technical field, industrial production, and other fields of human activity. The legislation does not stipulate that they must be professional. The exception is when the study is performed in an expert institution. In any case, the person’s knowledge must be deep enough to perform the procedure and formulate answers to questions. An inquiry officer, a court, or an investigator may require confirmation of an expert’s qualifications. Evidence of the presence of relevant knowledge can be evidenced by a certificate, qualification certificate, etc. In addition, these entities have the right to find out the correspondence of the person’s field of activity, professional experience, and scientific works to the area of ​​knowledge to which the issues to be resolved relate. It should be noted that expert certification is not mandatory and is carried out only on a voluntary basis.

The practice of involving experts in criminal proceedings

Various experts are involved in criminal proceedings on a regular basis, here are just some examples of such practice:

1. Citizen N. received written threats on a regular basis. She was subsequently beaten by unknown assailants on the street. The investigation found that the motive for committing such a crime could be a hostile relationship with citizen I. It was decided to conduct a handwriting examination to find out who wrote the threatening letters. The expert confirmed that the letters were written by citizen I.
2. 02/07/2018 An accident occurred involving citizen N. and citizen M. Carrying out an auto technical examination helped to find out that the culprit of the accident was citizen N., who was driving a faulty vehicle.
3. 06/06/2017. Citizen D was shot dead in his own apartment. A ballistic examination made it possible to understand that citizen I had previously been wounded with the same weapon. Comparison of the connections of citizens D. and I. made it possible to trace the criminal and detain him.

In total, he practices over 30 different forensic examinations. Many of them have implications not only for criminal but also civil proceedings.

What decisions does the expert make?

The expert issues a conclusion that contains answers to clearly posed questions, within his competence, but this does not mean that he does not have the right to take the initiative and add information to the report that is important for the process.

The possibility of taking the initiative is dictated by the fact that the legislator recognizes the fact that the court, inquiry officer or investigator are not able to establish the correct scope of the task for the expert. Attitudes to this in legal circles vary. Some legal theorists and practitioners propose to prohibit such amateur activities, but many, on the contrary, want to make it an expert’s responsibility to answer unposed questions in the conclusion, if this is necessary for the case. Both sides are right in their own way, so the issue remains debatable.

What is the difference between an expert and a specialist?

Along with experts, specialists are involved in criminal proceedings.

These subjects have similar features:

• they have special knowledge in a specific area, which is important for making the right decision in criminal proceedings;
• these subjects are brought to criminal proceedings on the same basis;
• experts and specialists are independent, neutral subjects of the criminal process.

At the same time, there is also a difference between these subjects:

1. An expert is hired to conduct research. The specialist does not investigate anything, but advises the court, investigation or inquiry.
2. These entities differ in the results of their activities. An expert contributes to the acquisition of new data, a specialist simply voices certain knowledge from a specific area.
3. There are also differences in the official results of the work. An expert prepares a written report of his work; a specialist does not do this.

Despite the similarity in the interpretation of the definitions of “expert” and “specialist”, as well as a certain similarity of their functions and procedural status, it is necessary to distinguish between the concepts and functions of these subjects in criminal proceedings.

Additionally

In accordance with Art. 57 of the Code of Criminal Procedure of the Russian Federation, for providing a deliberately fictitious conclusion, the subject is held accountable. In this case, the procedure established by norm 307 of the Code is applied. Responsibility is also provided for the publication of information from a preliminary investigation, which a citizen became aware of in connection with the fulfillment of instructions from an inquiry officer, a court, or an investigator. The subject is attracted to it in accordance with the provisions of 310 norms of the Code.