A forensic examination can be appointed and carried out both before the initiation of a case and during the preliminary investigation. In this case, the decision is made by the procedural person, this is stated in Art. 195 Code of Criminal Procedure of the Russian Federation. However, in practice, examinations are also appointed by investigators. At the time of making a decision to conduct an FEI, the investigator draws up a resolution. After this, he introduces this document to the parties to the criminal process. In this case, a protocol is drawn up and a corresponding entry is made there, as stated in Art. 195 Code of Criminal Procedure of the Russian Federation.
Article 195 of the Code of Criminal Procedure of the Russian Federation. The procedure for appointing a forensic examination
- 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.
- Forensic examination is carried out by state forensic experts and other experts from among persons with special knowledge.
- The investigator familiarizes the suspect, accused, and his defense attorney with the decision to order 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.
- 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.
Important
In cases where it is necessary to determine the cause of death of a citizen or the degree of harm caused, an examination is considered necessary. In addition, it cannot be avoided even when law enforcement agencies have doubts about the sanity of the person who committed the crime. Especially when the case requires establishing the age of the alleged attacker, but due to the lack of documents this is not possible. The specifics of appointing and conducting an examination in such cases are clearly stated in Art. 195, 196 Code of Criminal Procedure of the Russian Federation.
However, forensic examination is always carried out only at the discretion of the investigator. In this regard, an examination may be appointed in a number of other cases when required by law.
Article 196 of the Code of Criminal Procedure of the Russian Federation. Mandatory appointment of a forensic examination
The appointment and conduct of a forensic examination is mandatory if it is necessary to establish: 1) the causes of death; 2) the nature and degree of harm caused to health; 3) the mental or physical state of the suspect, accused, when doubt arises about his sanity or ability to independently defend his rights and legitimate interests in criminal proceedings; 3.1) the mental state of a suspect accused of committing, at the age of over eighteen, a crime against the sexual integrity of a minor under the age of fourteen, to resolve the issue of the presence or absence of a disorder of sexual preference (pedophilia); 4) the mental or physical state of the victim, when doubt arises about his ability to correctly perceive the circumstances relevant to the criminal case and give evidence; 5) the age of the suspect, accused, victim, when this is important for the criminal case, and documents confirming his age are missing or are in doubt.
A comment
Expertise in criminal proceedings is usually called judicial, regardless of what stage of the investigation it is carried out. It is a study of materials provided by the investigator to the specialist. The investigator, the inquiry officer and the court have the right to order an examination. The basis for conducting an examination will be the need to obtain new knowledge on the case, which is necessary for a more detailed presentation of the entire picture of the atrocity that occurred. After her appointment, the procedural person must draw up a resolution. The document states:
- expert and institution data;
- issues relevant to the investigation of a crime;
- reasons for conducting the study;
- materials transferred to the specialist.
After this, the parties to the case must be familiarized with this resolution, as indicated by Art. 195 Code of Criminal Procedure of the Russian Federation. One can only agree with the comments added to it and note such an important point that not only the investigator, but also the court and the interrogating officer have the right to order an examination. In some cases, an examination of victims can only be carried out with the consent of their representatives. For example, when a person is under eighteen years of age. At the same time, many parents are very critical of the issue and do not want publicity and for this reason refuse the examination.
Article 200 of the Code of Criminal Procedure of the Russian Federation. Commission forensic examination
- A commission forensic examination is carried out by at least two experts of the same specialty. The commission nature of the examination is determined by the investigator or the head of the expert institution entrusted with the conduct of the forensic examination.
- If, based on the results of the research, the opinions of experts on the questions raised coincide, then they draw up a single conclusion. In case of disagreement, each of the experts who participated in the forensic examination gives a separate opinion on the issues that caused the disagreement.
Nuances
A legal analysis of some norms of the Code of Criminal Procedure relating to the appointment and implementation of examinations once again proves the fact that the legislation in this matter is imperfect and contradicts the Constitution. For example, in practice, a suspect cannot fully exercise his right granted by the Code of Criminal Procedure and challenge an expert. This may occur due to the fact that the investigator in the resolution indicated only the data of the government agency, but did not indicate the surname and initials of the specialist.
In addition, the issue of the professionalism of experts who conduct research in the field of criminal proceedings remains controversial. Because a specialist, without having certain knowledge, will not be able to give correct answers to the questions asked of him. Thus, the fate of an innocent person who will be convicted if there is an incorrect expert opinion may be at risk.
Article 201 of the Code of Criminal Procedure of the Russian Federation. Comprehensive forensic examination
- Forensic examination, which involves experts from various specialties, is complex.
- The conclusion of experts participating in a comprehensive forensic examination indicates what research and to what extent each expert conducted, what facts he established and what conclusions he came to. Each expert who participated in the production of a comprehensive forensic examination signs that part of the report that contains a description of the research he conducted and bears responsibility for it.
Article 202 of the Code of Criminal Procedure of the Russian Federation. Obtaining samples for comparative research
- The investigator has the right to obtain handwriting samples or other samples for comparative research from a suspect, accused, witness, victim, as well as in accordance with part one of Article 144 of this Code from other individuals and representatives of legal entities in cases where there is a need to check whether they left traces in a certain place or on physical evidence, and draw up a protocol in accordance with Articles 166 and 167 of this Code, with the exception of the requirement for the participation of witnesses. Obtaining samples for comparative research can be done before initiating a criminal case.
- When obtaining samples for comparative research, methods that are dangerous to human life and health or humiliating his honor and dignity should not be used.
- The investigator makes a decision on obtaining samples for comparative research. If necessary, samples are obtained with the participation of specialists.
- If obtaining samples for comparative research is part of a forensic examination, then it is carried out by an expert. In this case, the expert reflects information about the performance of this action in his conclusion.
Order
To carry out the examination, the investigator sends all materials along with the decision to the management of the specialized medical institution. In this case, this document can be returned back to law enforcement agencies. But only if the institution does not have a specialist who could professionally conduct this examination. As a rule, it is carried out only in government organizations subordinate to the Ministry of Internal Affairs. But in exceptional cases, the examination can be entrusted to a specialist of a different level, while his rights and responsibilities are explained to him and the necessary materials and documents are provided. Art. 195, 196 and 199 of the Code of Criminal Procedure of the Russian Federation provide for the procedure for its appointment, sending documents and mandatory implementation in a special institution.
Article 205 of the Code of Criminal Procedure of the Russian Federation. Expert interrogation
- The investigator has the right, on his own initiative or at the request of the persons specified in part one of Article 206 of this Code, to interrogate an expert to clarify his conclusion. Questioning an expert before presenting his/her conclusion is not permitted.
- An expert cannot be questioned regarding information that has become known to him in connection with the conduct of a forensic examination, if it does not relate to the subject of this forensic examination.
- The protocol of interrogation of the expert is drawn up in accordance with Articles 166 and 167 of this Code.
With consent or not
Carrying out an examination in the cases specified in Part 4 of Art. 195 of the Code of Criminal Procedure of the Russian Federation, is carried out only when the witness and the victim look at it positively. If they are minors, then their legal representatives make decisions for them. In addition, in practice situations often occur when parents are against their child taking part in the examination. This happens because people simply do not want third parties to know about the misfortune that happened in their family (for example, when a daughter was raped). It is for these reasons that examinations are not carried out and the decision on the issue of initiating a case or further conducting the investigation is suspended or remains without movement.
Article 207 of the Code of Criminal Procedure of the Russian Federation. Additional and repeated forensic examinations
- If the expert’s conclusion is insufficiently clear or complete, as well as if new questions arise regarding the previously investigated circumstances of the criminal case, an additional forensic examination may be ordered, the production of which is entrusted to the same or another expert.
- In cases where doubts arise about the validity of the expert’s conclusion or there are contradictions in the conclusions of the expert or experts on the same issues, a repeat examination may be ordered, the production of which is entrusted to another expert.
- Additional and repeated forensic examinations are appointed and carried out in accordance with Articles 195 - 205 of this Code.
professional criminal lawyer
in Moscow.
Chapter 27 of the Criminal Procedure Code of the Russian Federation
- 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. - Forensic examination is carried out by state forensic experts and other experts from among persons with special knowledge.
- The investigator familiarizes the suspect, accused, and his defense attorney with the decision to order 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.
- 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.
The appointment and conduct of a forensic examination is mandatory if it is necessary to establish: 1) the causes of death; 2) the nature and degree of harm caused to health; 3) the mental or physical state of the suspect, accused, when doubt arises about his sanity or ability to independently defend his rights and legitimate interests in criminal proceedings; 3.1) the mental state of a suspect accused of committing, at the age of over eighteen, a crime against the sexual integrity of a minor under the age of fourteen, to resolve the issue of the presence or absence of a disorder of sexual preference (pedophilia); 4) the mental or physical state of the victim, when doubt arises about his ability to correctly perceive the circumstances relevant to the criminal case and give evidence;
5) the age of the suspect, accused, victim, when this is important for the criminal case, and documents confirming his age are missing or are in doubt.
Article 197 of the Code of Criminal Procedure of the Russian Federation. Presence of the investigator during the forensic examination
- The investigator has the right to be present during the forensic examination and receive explanations from the expert regarding the actions he is taking.
- The presence of an investigator during a forensic examination is reflected in the expert’s conclusion.
Article 198 of the Code of Criminal Procedure of the Russian Federation. Rights of the suspect, accused, victim, witness when ordering and conducting a forensic examination
- When appointing and conducting a forensic examination, the suspect, accused, and his defense attorney have the right to: 1) become familiar 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) petition for the inclusion of additional questions for the expert in the resolution on the appointment of a forensic 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. - The witness and the victim, in respect of whom a forensic examination was carried out, have the right to familiarize themselves with the expert’s conclusion. The victim also enjoys the rights provided for in paragraphs 1 and 2 of part one of this article.
Article 199 of the Code of Criminal Procedure of the Russian Federation. The procedure for sending criminal case materials for forensic examination
- When conducting a forensic examination in an expert institution, the investigator sends to the head of the relevant expert institution a resolution 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 execution of the forensic examination to a specific expert or several experts from among the employees of this institution and notifies the investigator about this. In this case, the head of the expert institution, with the exception of the head of the state forensic institution, explains to the expert his rights and responsibilities provided for in Article 57 of this Code.
- The head of the 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 of a specific specialty or special conditions for conducting research, indicating the reasons for which the return is made.
- If a forensic examination is carried out outside an expert institution, then the investigator hands the decision and the necessary materials to the expert and explains to him the rights and responsibilities provided for in Article 57 of this Code.
- The expert has the right to return the decision without execution if the presented materials are not enough to conduct a forensic examination or he believes that he does not have sufficient knowledge to conduct it.
Article 200 of the Code of Criminal Procedure of the Russian Federation. Commission forensic examination
- A commission forensic examination is carried out by at least two experts of the same specialty. The commission nature of the examination is determined by the investigator or the head of the expert institution entrusted with the conduct of the forensic examination.
- If, based on the results of the research, the opinions of experts on the questions raised coincide, then they draw up a single conclusion. In case of disagreement, each of the experts who participated in the forensic examination gives a separate opinion on the issues that caused the disagreement.
Article 201 of the Code of Criminal Procedure of the Russian Federation. Comprehensive forensic examination
- Forensic examination, which involves experts from various specialties, is complex.
- The conclusion of experts participating in a comprehensive forensic examination indicates what research and to what extent each expert conducted, what facts he established and what conclusions he came to. Each expert who participated in the production of a comprehensive forensic examination signs that part of the report that contains a description of the research he conducted and bears responsibility for it.
Article 202 of the Code of Criminal Procedure of the Russian Federation. Obtaining samples for comparative research
- The investigator has the right to obtain handwriting samples or other samples for comparative research from a suspect, accused, witness, victim, as well as in accordance with part one of Article 144 of this Code from other individuals and representatives of legal entities in cases where there is a need to check whether they left traces in a certain place or on physical evidence, and draw up a protocol in accordance with Articles 166 and 167 of this Code, with the exception of the requirement for the participation of witnesses. Obtaining samples for comparative research can be done before initiating a criminal case.
- When obtaining samples for comparative research, methods that are dangerous to human life and health or humiliating his honor and dignity should not be used.
- The investigator makes a decision on obtaining samples for comparative research. If necessary, samples are obtained with the participation of specialists.
- If obtaining samples for comparative research is part of a forensic examination, then it is carried out by an expert. In this case, the expert reflects information about the performance of this action in his conclusion.
Article 203 of the Code of Criminal Procedure of the Russian Federation. Placement in a medical or psychiatric hospital for forensic examination
- If, when ordering or conducting a forensic medical or forensic psychiatric examination, the need arises for an inpatient examination of a suspect or accused, he may be placed in a medical or psychiatric hospital.
- A suspect or accused who is not in custody is placed in a medical or psychiatric hospital for a forensic medical or forensic psychiatric examination on the basis of a court decision adopted in the manner established by Article 165 of this Code.
- If a suspect is placed in a psychiatric hospital for a forensic psychiatric examination, the period during which he must be charged in accordance with Article 172 of this Code is interrupted until an expert opinion is received.
Article 204 of the Code of Criminal Procedure of the Russian Federation. Expert opinion
- The expert's conclusion shall indicate: 1) the date, time and place of the forensic examination;
2) the grounds for conducting a forensic examination; 3) the official who ordered the forensic examination; 4) information about the expert institution, as well as the surname, name and patronymic of the expert, his education, specialty, work experience, academic degree and (or) academic title, position held; 5) information about the expert’s warning about liability for giving a knowingly false conclusion; 6) questions posed to the expert; 7) research objects and materials submitted for forensic examination; information about persons present during the forensic examination; 9) content and results of research, indicating the methods used; 10) conclusions on the questions posed to the expert and their justification. - If, during a forensic examination, an expert establishes circumstances that are important for the criminal case, but about which questions were not asked to him, then he has the right to indicate them in his conclusion.
- Materials illustrating the expert’s conclusion (photos, diagrams, graphs, etc.) are attached to the conclusion and are an integral part of it.
Article 205 of the Code of Criminal Procedure of the Russian Federation. Expert interrogation
- The investigator has the right, on his own initiative or at the request of the persons specified in part one of Article 206 of this Code, to interrogate an expert to clarify his conclusion. Questioning an expert before presenting his/her conclusion is not permitted.
- An expert cannot be questioned regarding information that has become known to him in connection with the conduct of a forensic examination, if it does not relate to the subject of this forensic examination.
- The protocol of interrogation of the expert is drawn up in accordance with Articles 166 and 167 of this Code.
Article 206 of the Code of Criminal Procedure of the Russian Federation. Presentation of an expert opinion
- The expert’s conclusion or his message about the impossibility of giving an opinion, as well as the protocol of the expert’s interrogation, are presented by the investigator to the suspect, accused, or his defense attorney, who are explained the right to petition for the appointment of an additional or repeat forensic examination.
- If the forensic examination was carried out at the request of the victim or in relation to the victim and (or) witness, then they are also presented with an expert opinion.
Article 207 of the Code of Criminal Procedure of the Russian Federation. Additional and repeated forensic examinations
- If the expert’s conclusion is insufficiently clear or complete, as well as if new questions arise regarding the previously investigated circumstances of the criminal case, an additional forensic examination may be ordered, the production of which is entrusted to the same or another expert.
- In cases where doubts arise about the validity of the expert’s conclusion or there are contradictions in the conclusions of the expert or experts on the same issues, a repeat examination may be ordered, the production of which is entrusted to another expert.
- Additional and repeated forensic examinations are appointed and carried out in accordance with Articles 195 – 205 of this Code.
professional criminal lawyer
in Moscow.
