Conducting forensic examination in criminal proceedings

Forensic examination is a set of research activities aimed at studying objects, materials, phenomena and facts that raised questions during investigative processes.

An expert’s conclusion can provide the investigation with additional data that can prove or disprove the guilt of the accused.

All types of forensic examinations in criminal proceedings are divided according to the objects of study.

Materials science expertise

The second voluminous area of study, where the production of forensic examination in criminal proceedings is assigned on the basis of physical evidence, as well as for the examination of chemical compounds (this type can include forensic economic examination). Experts are working to determine fibers, the authenticity of papers, and traces of petroleum products. They issue an opinion on the composition of medications, narcotic drugs, food and other substances that are of key importance for investigative activities and the evidence base.

Classification of forensic examinations by childbirth

Order of the Ministry of Justice of Russia dated December 27, 2012 N 237 approved the List of types (types) of forensic examinations performed in federal budgetary forensic institutions of the Ministry of Justice of Russia.

This Order allows you to classify forensic examinations by childbirth, namely:

Handwriting examination
Author's expertise
Technical examination of documents
Phototechnical expertise
Portrait examination
Trace examination
Forensic examination of video and sound recordings
Examination of weapons and gunshot traces
Explosive testing
Forensic examination of materials, substances and products
Soil expertise
Biological examination
Automotive technical expertise
Fire-technical expertise
Explosive technology examination
Construction and technical expertise
Accounting expertise
Financial and economic expertise
Commodity examination
Psychological examination
Computer technical expertise
Study of forensic objects using instrumental methods. - Excluded
Examination of markings
Environmental assessment
Expertise of electrical appliances
Linguistic expertise
Land management examination
Examination of wild flora and fauna objects

In addition, there is a smaller classification of examinations by type within each genus, which is also reflected in the above Order.

Forensic

In this case, the procedure for conducting a forensic examination in a criminal trial affects physiological traces at the crime scene (traces of blood, saliva and other liquids), and the collection of information on the remains of corpses. Also, the peculiarities of prescribing a forensic examination in criminal proceedings are determined by the need to draw up a psychological portrait of a person or confirm (refute) the presence of a psychiatric diagnosis (forensic psychological examination).

Forensic examinations are distinguished by:

Procedure
Repeated
A secondary inspection is appointed when new facts or questions arise in the case. It can be carried out either by a primary expert or with the involvement of new highly specialized individuals.
Quantitative composition of experts
Complex Several experts of the same specialization take part in the study of an object. A comprehensive forensic examination in criminal proceedings allows us to examine the material or object in as much detail as possible, using various specialist techniques.
Commission

The object is studied by compiling an expert group, including specialists from different fields of science and knowledge for a more detailed and comprehensive study of the key issue.

Comments:

In accordance with Art. 80 of the Code of Criminal Procedure of the Russian Federation an expert’s conclusion is the content of the study and conclusions presented in writing on the issues posed to him by the person conducting the criminal proceedings, or by the parties.

The question of the need to conduct an expert examination in court proceedings is decided in each specific case, taking into account all the circumstances of the criminal case. In cases where, in the opinion of the court, special knowledge is required to establish any circumstances included in the subject of proof, and during the preliminary investigation an examination was not carried out, the court has the right to decide to conduct an examination at a court hearing. Such a decision may be made by the court at the request of any of the participants in the trial.

An unjustified refusal to satisfy a request to order an examination may serve as a basis for the reversal of a court verdict.

An exhaustive list of cases of mandatory appointment and production of forensic examination is indicated in Art. 196 Code of Criminal Procedure of the Russian Federation.

a decision on the need to conduct an expert examination directly during the trial at the request of the parties or on its own initiative. In this case, the court allows the participation of an expert in examining the circumstances of the case only after making a ruling on the appointment of an expert examination and resolving the issue of his challenges, having ascertained the opinion of each participant in the trial.

Before asking questions, the expert must, during the judicial investigation, find out all the circumstances relevant to giving an opinion. After this, the presiding judge invites the prosecutor, defense attorney, defendant, as well as the victim, civil plaintiff, civil defendant and their representatives to submit written questions to the expert . These issues are announced in court, and on each of them the opinions of all participants in the trial are heard.

After this, the court discusses the issues presented by the participants in the trial, eliminates those that are not relevant to the case, and formulates new ones. Questions before the expert should be formulated only in the court ruling, in which the court is obliged to give reasons why certain questions submitted to the expert by the participants in the trial were rejected. The court must perform these actions after retiring to the deliberation room.

The expert’s conclusion is announced by him at the court hearing and attached to the case along with the questions. If necessary, the expert is asked questions to clarify or supplement his conclusion.

If the expert’s conclusion is not sufficiently substantiated and through questioning it was not possible to eliminate doubts about the correctness of the expert’s conclusions, the court has the right, at the request of the parties or on its own initiative, to order a re-examination. It is entrusted to another expert, who is admitted to the trial in compliance with the procedure established by law.

Examples of requests for the appointment of an examination:

Petition for the appointment of a comprehensive fire-technical, electrical, metallurgical, chemical examination in a criminal case
Petition to request from the body that conducted the operational experiment the original phonograms as well as the recording device and to order a repeat phonoscopic examination in a criminal case
Petition to appoint a linguistic examination in a case of commercial bribery (Article 204 of the Criminal Code of the Russian Federation)

Who requests an expert study and why?

The question of the appropriateness and necessity of an examination can be raised by both a representative of the legal sphere (judge, lawyer, investigator) and another participant in the trial (accused, plaintiff, victim, witness). If the participants in the process, or one of them, insist on conducting an examination, then they need to present questions to the investigator and justify the importance of the examination. Based on the investigator's decision, the application will be accepted or rejected.

The investigator also has the right to order an examination before formal charges are filed.

To summarize, the grounds for ordering a forensic examination in criminal proceedings are the emergence of questions about the objects or processes of the investigation from any participant in the case.

Appointment of forensic examination

The appointment of a forensic examination, both during the preliminary investigation and in court, is regulated by the relevant norms of the Code of Criminal Procedure of the Russian Federation. Article 195 of the Code of Criminal Procedure of the Russian Federation regulates the procedure for appointing an examination by an investigator. In practice, examinations are appointed by investigators in the same order, but this official, for some reason, in Art. 195, 197, 199 of the Code of Criminal Procedure of the Russian Federation is not provided for. Based on the disposition of Art. 195 of the Code of Criminal Procedure of the Russian Federation, one or another forensic examination in a criminal case is appointed if the investigator considers it necessary. The examination is appointed by issuing a resolution in which the investigator indicates:

1) the grounds for ordering a forensic examination; 2) the surname, 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.

Part 3 of this norm provides for the need for the investigator to familiarize himself with the decision to order a forensic examination of the suspect, accused, his defense attorney and explain to him the rights provided for in Art. 198 of the Code of Criminal Procedure of the Russian Federation, about which a protocol is drawn up, signed by the investigator and persons who are familiar with the resolution. Within what period of time from the date of issuance of the decision on the appointment of a forensic examination the investigator must familiarize the above-mentioned persons with the decision on the appointment of the examination, this norm does not say anything.

Analysis of Part 3 of Art. 195 of the Code of Criminal Procedure of the Russian Federation, which contains a reference to Art. 198 of the Code of Criminal Procedure of the Russian Federation, and the contents of Part 1 of Art. 198 of the Code of Criminal Procedure of the Russian Federation on the rights of the suspect, the accused and their defense attorney when ordering and conducting an examination allows us to assert that the investigator must familiarize the above persons with the resolution on the appointment of an examination “when appointing” a forensic examination.

In accordance with the dictionary of the Russian language by S.I. Ozhegov, “PRI with whom” is a preposition with the prepositional case, which has, among other things, the following meaning: “indicates a subordinate state in relation to someone or something, being related to something"[1]. In other words, Part 1 of Art. 198 of the Code of Criminal Procedure of the Russian Federation, linking the moment of familiarization of the persons specified in it with the resolution on the appointment of an examination with the moment of “appointment” of the examination, means that immediately after the publication of the resolution on this, i.e. Having “ordered” an examination, the investigator is obliged to familiarize the persons specified in Part 1 of Art. with this decision. 198 of the Code of Criminal Procedure of the Russian Federation, and provide them with the opportunity to exercise the rights guaranteed to them by this norm:

1) get acquainted with the decision on the appointment of a forensic examination; 2) challenge an expert or apply for a forensic examination in another expert institution; 3) apply for the involvement of persons specified by them as experts or for the conduct of a forensic examination in a specific expert institution; 4) apply for the inclusion of additional questions for the expert in the resolution on the appointment of an examination; 5) to be present, with the permission of the investigator, during the forensic examination, to give explanations to the expert; 6) get acquainted with the expert’s conclusion or the message about the impossibility of giving an opinion, as well as with the protocol of the expert’s interrogation.

This is also evidenced by Part 2 of Art. 16 of the Code of Criminal Procedure of the Russian Federation, located in the chapter on the principles of criminal proceedings, according to which “The court, prosecutor, investigator and interrogating officer explain to the suspect and accused their rights and provide them with the opportunity to defend themselves by all methods and means not prohibited by this Code” (my italics - A.R. ).

In accordance with Part 3 of Art. 7 of the Code of Criminal Procedure of the Russian Federation, which is also a principle of criminal proceedings: “ Violation of the norms of this Code by a court, prosecutor, investigator, body of inquiry or interrogating officer during criminal proceedings entails the recognition of evidence obtained in this way as inadmissible” (emphasis added - A.R.).

However, practicing lawyers know that in the overwhelming majority of cases, investigators familiarize the suspect, accused and their lawyer with the decision to order an examination not when it is ordered, but when familiarizing them with a ready-made expert opinion, i.e. after the examination, when to exercise the numerous rights provided for in Part 1 of Art. 198 of the Code of Criminal Procedure of the Russian Federation, these participants in legal proceedings can no longer, because artificially deprived of these rights by the investigator.

On the other hand, the very design of these rules on the appointment of a forensic examination at the pre-trial stages of legal proceedings and the legal technique used a priori contain a mechanism for violating the rights of the suspect, the accused and the defense attorney when ordering an examination. In particular, as follows from clause 2, part 1, art. 195 of the Code of Criminal Procedure of the Russian Federation, in the resolution on the appointment of an examination, the investigator has the right to indicate equally either the surname, first name and patronymic of the expert who will carry out the examination, or the name of the expert institution in which the examination should be carried out.

A natural question arises: how can the defense (suspect, accused, their defense attorney) implement what is provided to them in Part 1 of Art. 198 of the Code of Criminal Procedure of the Russian Federation, the right to challenge an expert, if in the resolution ordering the examination the investigator did not indicate the expert’s data, but, using his alternative right, indicated the name of the expert institution in which the examination should be carried out?

On the other hand, for the implementation of the declared part 1 of Art. 198 of the Code of Criminal Procedure of the Russian Federation the right of participants on the defense side to challenge an expert in accordance with current legislation; there must be grounds provided for by law for such a statement.

In accordance with Art. 70 of the Code of Criminal Procedure of the Russian Federation, the grounds for challenging an expert are: 1) circumstances provided for in Article 61 of the Code of Criminal Procedure of the Russian Federation; 2) if he was or is in official or other dependence on the parties or their representatives; 3) if his incompetence is revealed.

It is more than obvious that the specified circumstances, which are the grounds for challenging the expert, must be known to the participants in the legal proceedings on the part of the defense at the time of their familiarization with the decision on the appointment of a forensic examination, because otherwise, they have no grounds to exercise this right and challenge the expert.

An objective analysis of these norms of the Code of Criminal Procedure of the Russian Federation concerning the appointment and production of forensic examinations indicates their legal uncertainty, which contradicts the provisions of the Constitution of the Russian Federation. As noted in the previous chapters of this manual, the current legislation on forensic activity contains a number of criteria for determining the competence and qualifications of experts of state forensic institutions and does not contain any criteria for determining the competence and qualifications of “persons with special knowledge”, but who are not government officials. forensic experts.

Consequently, even if the resolution on the appointment of an examination would legislatively provide for the reflection of information on the qualifications and competence of state experts, then in relation to other “persons with special knowledge” there are no such criteria in the legislation. As already indicated, Art. 13 of the Law on SSED imposes professional and qualification requirements on state experts, consisting of:

— presence of higher professional education; — subsequent training in a specific expert specialty; — certification for the right to independently conduct a forensic examination in a specific expert specialty for a period of five years, after which the level of professional training of the expert is subject to revision.

However, the current legislation, providing in Art. 41 of the Law on SSED, the possibility of carrying out expert activities by “persons with special knowledge”, but who are not state experts, at the same time does not extend the effect of Art. 13 of the Law on SSED and does not provide for a legislative mechanism for verifying their professional and qualification preparation for carrying out such activities.

The absence in the norms of the Code of Criminal Procedure of the Russian Federation regulating the appointment of a forensic examination of the need to reflect in the resolution on the appointment of an examination, in addition to the surname, name and patronymic of the expert, also information about his professional qualifications and competence, essentially deprives the participants in the process, incl. and the defense, the possibility of exercising their rights to challenge the expert due to his “discovered” incompetence.

At best, the incompetence of an expert under the current legislation regulating the appointment and production of forensic examinations can be revealed only after it has been carried out by the expert when assessing the conclusion presented by him, and most often at the stage of trial. This state of affairs is explained by the fact that Art. 204 of the Code of Criminal Procedure of the Russian Federation also does not contain the obligation to reflect in the expert’s opinion the information provided for in Art. 13 of the Law on SSED, i.e. on the certification of an expert (state), the issued certificate of the right to independently conduct a forensic examination in a specific specialty (specialties) and the validity period of this certificate.

In relation to the so-called non-state experts, such information is not provided at all in the current legislation. In this regard, declared in Part 1 of Art. 198 of the Code of Criminal Procedure of the Russian Federation, the right of participants in legal proceedings on the part of the defense to challenge an expert “when appointing” a forensic examination is a priori an empty declaration, because in the current legislation there is no legal mechanism to ensure compliance with the constitutional principles of legal proceedings - equality and competition of the parties, incl. and in the appointment and conduct of forensic examinations.

Essentially, this state of affairs with the legislative regulation in the Code of Criminal Procedure of the Russian Federation for the appointment and conduct of a forensic examination leads to the fact that the subjects of the appointment of the examination themselves: the investigator, the inquiry officer, the prosecutor and the court, are deprived of the opportunity to ensure that the examination they appoint will be carried out by a qualified and competent expert .

As mentioned earlier, the specified subjects of appointment of examination are incompetent in determining the competence of experts. The competence of an expert can only be determined by specialists in the relevant fields of knowledge. This means that there is a high probability of violation of the requirements of Art. 6.1 of the Code of Criminal Procedure of the Russian Federation on reasonable time limits for legal proceedings, which is confirmed daily by practice.

In previous chapters, an example has already been given from practice, when the investigator in a criminal case of causing bodily harm, expressed in damage to the cornea of the victim’s eye, appointed a forensic medical examination to determine the severity of this damage to the forensic expert of Morgue No. 2 in Moscow. Initially, it was more than obvious that the morgue’s forensic expert was not involved in his practical work with issues of ophthalmology, special knowledge from which was needed to determine the severity of damage to the organ of vision.

As a result, the said expert, without examining the victim, based only on the medical documents presented to him by the interrogating officer, gave a conclusion that, allegedly, the severity of the eye injury “examined” by him according to the medical documents refers to minor bodily injuries. The appointment of the examination was carried out without familiarizing the victim with the decision on the appointment of this examination, and therefore he could not exercise his rights provided for in paragraphs 1 and 2 of Part 1 of Art. 198 Code of Criminal Procedure of the Russian Federation.

The defense's petition for violation by the investigator of the procedure for ordering an examination, the rights and interests of the victim, as well as for the involvement of an incompetent expert in the examination, in connection with which a re-examination should be ordered in the case with the involvement of a specialist competent in the field of ophthalmology, was unreasonably rejected. However, when the prosecutor approved the indictment, the case was returned to the investigator with an indication of the need to carry out a second forensic medical examination with the involvement of a specialist in the field of ophthalmology, as a result of which such an examination was carried out and, according to the conclusion of the repeated examination, the average severity of the injuries caused was established.

Naturally, the proceedings in the case were extended for several months, which indicates a violation of reasonable deadlines for criminal proceedings, which could have been avoided if the investigator had complied with the norms of the current legislation on the procedure for appointing and conducting a forensic examination.

The norms of the Code of Criminal Procedure of the Russian Federation regulating the procedure for appointing and conducting a forensic examination are far from perfect and, as practice shows, are discriminatory and do not ensure compliance with the constitutional principles of justice: equality and competition of the parties.

Part 2 Art. 195 of the Code of Criminal Procedure of the Russian Federation, which regulates the procedure for appointing a forensic examination, provides for the examination to be carried out both by state forensic experts and “other experts from among persons with special knowledge.” But, as mentioned earlier, there are no laws in the country that regulate the question of who and in what legislative order from “persons with special knowledge” becomes an expert. Therefore, it is not clear on what legislative basis the legislator in Part 2 of Art. 195 of the Code of Criminal Procedure of the Russian Federation mentions the term “other experts”.

As already mentioned, the Law on SSED does not regulate the activities of so-called non-state experts and does not even contain such a term. Article 41 of the GSED Law refers only to “persons with special knowledge, but who are not government experts.” At the same time, the legislator in this norm refers the law enforcement officer to the norms of procedural legislation. But in procedural legislation there are no rules regulating the activities of “non-state experts”.

Expert in accordance with Art. 57 of the Code of Criminal Procedure of the Russian Federation is defined as “a person with special knowledge and appointed in the manner established by the Code of Criminal Procedure of the Russian Federation to conduct a forensic examination and give an opinion.” This “appointment procedure” is known to practicing lawyers. An investigator's resolution is issued to order a forensic examination, in which, in accordance with paragraph 2 of part 1 of Art. 195 of the Code of Criminal Procedure of the Russian Federation at the choice of the investigator or indicate: “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.”

In practice, most often, investigators indicate the name of the expert institution in which the forensic examination should be carried out. In accordance with Art. 199 of the Code of Criminal Procedure of the Russian Federation, the investigator sends his resolution on the appointment of a forensic examination to the head of the expert institution, who determines who will carry out the forensic examination and notifies the investigator about this.

Thus, the expert in the case is essentially appointed not by the investigator who issued the decision, but by the head of the expert institution. This norm does not contain any obligations of the head of the expert institution to provide the investigator with appropriate documents confirming the qualifications and competence of the expert assigned to him to carry out the assigned forensic examination.

This, in turn, means that the investigator cannot familiarize the interested participants in the proceedings, in particular the suspect, the accused, and their defense attorney, with such data. Without this information, which is important for the exercise of their rights, the suspect, accused and their defense lawyer are deprived of the opportunity to challenge the expert, because They have no information about his competence.

On the other hand, as already mentioned, in our country, forensic examinations in criminal cases are carried out both by state experts and “persons with special knowledge”, but who are not state experts, in relation to whom there is no legislative mechanism for verifying their qualifications and competence, as stated above, no. And this, in turn, means that when ordering a forensic examination at a state forensic institution, there is confidence that a person who meets the requirements of Art. 13 of the Law on SSED, i.e. a person whose qualifications and competence were verified during certification by the qualification commission.

When appointing a forensic examination in the so-called non-state expert institutions, the situation under the current legislation is such that a person who is not a state expert and for whom the current legislation does not require higher education, subsequent training in a specific expert specialty and certification every five years, with one stroke of the investigator’s pen he is called an expert and is involved in the criminal process.

There is no other legal mechanism for such persons to obtain the qualification (status) of an expert in the current legislation. The situation is paradoxical, because According to current legislation, neither the investigator, nor the prosecutor, nor the court have the right to assign “persons with special knowledge” the status of an expert in criminal proceedings. It seems that “a person with special knowledge” must, before appearing in criminal proceedings, have the qualification (status) of “expert” and only with such qualifications be appointed an expert in criminal proceedings in a particular case.

The inequality of the parties to the process in criminal proceedings is seen, inter alia, in the appointment and conduct of a forensic examination. So, for example, Art. 197 of the Code of Criminal Procedure of the Russian Federation gives the investigator the right to be present during the examination and receive explanations from the expert regarding the actions he is carrying out. Meanwhile, clause 5, part 1, art. 198 of the Code of Criminal Procedure of the Russian Federation binds the right of the suspect, the accused and their defense attorney to be present during the examination and to give explanations to the expert with the permission of the investigator.

Let us note right away that the law gives the investigator the right to receive explanations from an expert regarding the actions he is carrying out, without granting such a right to the suspect, accused and their defense attorney. The latter have the right only to give explanations to the expert. What kind of equality of rights of the parties in the process can we talk about in this case, if the rights and opportunities of the participants on the defense side depend on the discretion of the prosecution representative?

It seems discriminatory and illogical and part 1 of Art. 195 of the Code of Criminal Procedure of the Russian Federation in the part where it is stipulated that the appointment of a forensic examination in a case is associated with the discretion of the investigator - whether he recognizes the need for the appointment of an examination. Considering the well-known accusatory bias that our law enforcement officers suffer from, as a rule, in cases where the appointed and carried out examination may undermine or refute the accusation, investigators (and the court) refuse to conduct such examinations.

On the other hand, the legislative establishment of a legal mechanism in which an examination should be ordered only in cases where it is “recognized as necessary” by the subjects of its appointment (investigator, inquiry officer, prosecutor and court) is both discriminatory in relation to participants on the part of the defense and and does not ensure the constitutional principles of justice - equality and competition of the parties. This manifests the unfounded and artificial assignment to employees of the law enforcement system of the presumption of “infallible competence” of investigative and judicial workers in the field of appointing and conducting forensic examinations, which does not exist in the country’s legislation, i.e. in an area that for them is also an “area of specialist knowledge” in which they are not competent.

As we see, the criminal procedural legislation in this matter does not ensure equality of the parties in the appointment and conduct of forensic examinations and does not provide for their appointment and conduct in cases where the “recognition of necessity” of the examination was initiated by participants on the part of the defense. Representatives of the law enforcement system often take advantage of this in bad faith, denying the defense the appointment and production of a forensic examination necessary in the case, but capable of refuting the prosecution’s version.

Example. Thus, the Golovinsky District Court of Moscow considered a criminal case in which police officer Sh., called a “precinct commissioner” by the investigative body, was prosecuted under Article 290 of the Criminal Code of the Russian Federation for allegedly receiving a bribe in the amount of 1,500 rubles. from the head of one of the LLCs that employed guest workers who did not have registration and work permits, presumably for assistance in obtaining registration and permits. The case materials did not contain proper documents confirming that the person prosecuted is a local district commissioner, and therefore the defense filed a motion to supplement the case materials with the missing documents.

The investigator in the case attached to the materials a photocopy of the contract for the employment of the person involved as a district commissioner and an extract from the order on his appointment as a district commissioner. According to the categorical statement of the accused, the defense lawyer knew that there was no contract with him to work as a district inspector. The only contract that he concluded concerned his previous work as an investigator, but at the same time, reviewing a photocopy of the contract for work as a district inspector, which was copied on both sides of one sheet, he admitted that in this photocopy on the reverse side of the sheet there was his signature and he doesn't understand how this could happen.

The mechanism for falsifying this “document” became clear to the defense: the front side of the contract was printed indicating that the accused was supposedly being hired as a district inspector, and the back side was photocopied from a previous contract for employment as an investigator, on which the accused’s signature was. The defense filed a motion to include in the case materials or present for review the original contract, a photocopy of “which” was attached to the case materials. This request, as is customary in practice, was denied by the defense and the case was brought to court in this form.

A similar petition filed in court was rejected by the court, and the accused was sentenced to four years in prison. The cassation appeal against this verdict by the Moscow City Court (strangely enough) was granted, and the case was returned for a new trial. When the case was reconsidered, the defense again filed a motion to submit to the court a genuine contract for allegedly hiring the accused as a district commissioner.

Finally, the “original” of this contract was presented to the court, when compared with the “photocopy of it” available in the case, the defense established that neither the signature of the head of the internal affairs department on this contract, nor the signature of the accused corresponded to the signatures of the same persons - on the one available in the case "photocopies". The differences were so obvious that it was not necessary to have special knowledge in this area of knowledge.

Nevertheless, the defense filed a motion to order and carry out a forensic handwriting and forensic examination of documents to clarify the following questions: whether the photocopy of the contract on hiring the accused as a district inspector available in the case is a photocopy of the original contract submitted to the court about this, and whether the signatures were executed in the original contract by the persons named therein. As one would expect, the court refused to order and conduct this examination and, having assumed the unusual function of a forensic expert, began to argue with the defense’s arguments about the similarity or dissimilarity of the handwritings. But, ultimately, acting on the principle that “the wolves are fed and the sheep are safe,” he reclassified the actions of the accused from Art. 290 of the Criminal Code of the Russian Federation at Art. 159 of the Criminal Code of the Russian Federation and determined the punishment as two years in prison.

Meanwhile, for example, the Code of Criminal Procedure of the Republic of Kazakhstan contains a rule on the rights of participants on the part of the defense in the appointment and conduct of examinations. So, for example, part 4 of Art. 242 of the Code of Criminal Procedure of the Republic of Kazakhstan provides for the possibility of appointing an examination on the initiative of participants in the process “protecting their own or represented interests.” What is noteworthy about this norm, which does not claim to be infallible, is that it provides for a rule according to which: “... the body conducting the criminal process does not have the right to refuse to order an examination, except in cases where the issues submitted for its resolution are not relate to a criminal case or the subject of forensic examination.” I believe that it is clear to the reader that what is unacceptable in this norm of the Kazakh legislator is the unreasonable linking of the implementation of the rights of participants by the defense with the discretion of the “body conducting the criminal process.” The expression of the Kazakh legislator in this norm “except for cases when the issues submitted for resolution do not relate to the criminal case or the subject of the examination” essentially means that the determination of whether the defense issues raised for resolution of a particular examination relate to The subject of the examination is dealt with by employees of the “authority conducting the criminal process.”

The paradox of such a rule is obvious, because neither the court, nor the investigator, nor the inquiry officer and the prosecutor are specialists in the field of special knowledge and it is not within their competence to determine whether “certain questions raised by the defense in the field of special knowledge are or are not within the scope of this examination.” Since, according to the legislator, before ordering and conducting a forensic examination, it is necessary to make sure that the issues of interest to the participants in the process “relate to the subject of the examination,” it seems necessary to create a legal mechanism in which, for this purpose, the “body conducting the criminal process “a “person with special knowledge” is invited, who determines whether or not this or that issue of interest to the participants in the proceedings is included in the subject matter subject to the appointment of a forensic examination.

Legislative binding of the implementation of the guaranteed rights of some equal participants in the process from the discretion of other participants indicates their inequality in the process, which means a violation of the constitutional principles of justice.

The constitutional and legal meaning of the norms of the Code of Criminal Procedure of the Russian Federation on forensic examination, along with the constitutional principles of justice - equality and adversarial rights of the parties, is that both parties have an equal opportunity to participate in the appointment of examinations necessary in the case and in raising the questions necessary in the case before the examination.

Legislative identification of the subjects of expert examination (court, prosecutor, investigator, inquirer) as supposedly more competent in determining issues to be resolved by forensic examination, and endowing them with greater powers in this regard than the defense is in no way justified and harms the interests of justice, since both the court and the parties to criminal proceedings are not “persons with special knowledge” in the sense provided for in Art. 57 Code of Criminal Procedure of the Russian Federation.

In this regard, it does not seem to be based on the current legislation to grant the prosecution (the court) the right to reject or reformulate certain questions submitted for examination by the defense participants. More acceptable in these cases is the development of a legal mechanism in which the body appointing the examination invites a “person with special knowledge” who, with the participation of the parties to the process, helps determine the type and type of examination required and the formulation of questions to resolve them on issues of interest to them.

By the way, in Art. 58 of the Code of Criminal Procedure of the Russian Federation provides that one of the assignments of a specialist involved in procedural actions is “the use of technical means in the study of materials of a criminal case, to pose questions to the expert, as well as to explain to the parties and the court issues within his professional competence.” But this norm does not contain the obligation of representatives of the law enforcement system in all cases of the need to appoint a forensic examination in a case, it is necessary to involve a specialist for this purpose and, with the participation of the parties, determine the type and type of examination required in the case and the formulation of questions for this examination, depending on the circumstances, which, according to in the opinion of the participants in the process, it is necessary to establish the case using special knowledge.

It is no secret that practical law enforcement officers, as well as lawyers, when it is necessary to pose questions to the forensic examination necessary in a case, as a rule, use various kinds of reference books, guides for investigators and lawyers, reference books that provide sample questions on which one or another examination can answer. However, these manuals and reference materials, while undoubtedly useful for these purposes, cannot replace the opinion of a “person with special knowledge” in a given field of knowledge and who uses this knowledge every day in their practical activities.

As mentioned above, specialized knowledge is daily enriched with new possibilities as a result of the development of science and technology, which is monitored primarily by specialists in these fields of knowledge. Questions of interest to participants in the process that could not be answered yesterday can be resolved today as a result of scientific discoveries and research. Therefore, as stated above, Art. 4 of the Law on SSED requires the use of modern knowledge during expert research, as well as requiring re-certification of state experts every five years in order to determine their level of possession of modern knowledge.

In this regard, it is not consistent with the needs of practice that the appointment of an examination and the formulation of issues submitted for resolution should be carried out without involving specialists in these types of examinations in the criminal process.
Among other things, this practice also leads to a violation of Art. 6.1 of the Code of Criminal Procedure of the Russian Federation, i.e. to unreasonable delays in the investigation and consideration of criminal cases, because Incorrectly formatted case materials for examination and incorrectly formulated questions lead to the return of these cases to the subjects appointing the examination, to various kinds of requests from expert institutions to replenish materials for examination and correct the formulated questions, which takes quite a lot of time. [1] Ozhegov S.I. Dictionary of the Russian language. M., “Russian language”, 1991, P.584.

What is the procedure for submitting an application for examination?

Any appointment of a forensic examination in a criminal trial begins with filling out a petition according to the established template. After which the sample is submitted to the investigator, who must either accept or refuse the examination. If a positive decision is made, then the test samples are removed and delivered to an expert organization. The composition of the commission is appointed. Upon completion of the specialists’ work, they send the verdict to the investigator.

The legal procedure for appointing a forensic examination in criminal proceedings implies the consent of the parties to the process in conducting research. The only exception is when the examination is carried out forcibly - if there are doubts about the sanity of the accused.

State or non-state expert?

Any participant in the investigative bodies will send applications for examination to government agencies assigned territorially. But sometimes non-state forensic examination takes a direct part in criminal proceedings.

Reasons for conducting an examination in a non-governmental institution:

Lack of an expert in the required field
Lack of technical capabilities to conduct an examination

Due to the widespread problem of forensic examination in criminal proceedings in government institutions, namely, insufficient equipment of laboratories with reagents and technical means, the application is sent to independent commercial or non-profit companies.