The lecturer, together with the participants, analyzed in detail the theoretical, organizational and procedural issues of forensic examination, namely:
- 1. The concept of forensic examination.
- 2. Regulatory acts regulating forensic activities.
- 3. Persons authorized to order forensic examinations.
- 4. Scientific and research institutions of forensic expertise of the Ministry of Justice of Ukraine.
- 5. Expert services.
- 6. Private forensic experts.
- 7. “Other professionals” in judicial proceedings: legal problems and risks.
- 8. Types of forensic examinations by procedure.
- 9. The difference between forensic examination and expert research.
- 10. Expert research.
- 11. Information that a lawyer can obtain from the Register.
The following is emphasized within the framework of the characteristics of forensic examination :
1. The concept of forensic examination
According to Article 1 of the Law of Ukraine “On Forensic Expertise”, forensic expertise is a study by an expert based on special knowledge of material objects, phenomena and processes that contain information about the circumstances of a case that is being investigated by pre-trial investigation bodies or a court.
Special knowledge and skills in the relevant field of science, technology, art, craft, etc., in addition to knowledge in the field of law, are necessary to resolve issues that arise during the investigation and trial of specific cases.
Special knowledge is called knowledge that is not common or well-known, but only that which is possessed by specialists and professionals in a particular field.
This knowledge is obtained by a specialist in the process of training and practical activity in the relevant specialty (profession), and includes skills and abilities for their application. Persons who possess special knowledge and experience are recognized as knowledgeable persons in legal proceedings.
2. Regulatory acts regulating forensic activities:
- Constitution of Ukraine;
- Civil Procedure Code of Ukraine;
- Criminal Procedure Code of Ukraine;
- Commercial Procedural Code of Ukraine;
- Code of Ukraine on Administrative Offenses;
- Code of Administrative Procedure of Ukraine;
- Customs Code of Ukraine;
- Law of Ukraine “On Forensic Expertise”;
- Law of Ukraine “On Enforcement Proceedings”;
- Law of Ukraine “On the Bar”;
- Law of Ukraine “On Environmental Expertise”;
- International treaties and agreements on mutual legal assistance and cooperation;
- Decree of the President of Ukraine “On the Regulations on the Ministry of Defense of Ukraine and the Regulations on the General Staff of the Armed Forces of Ukraine” dated April 6, 2011 No. 406/2011;
- Departmental instructions:
- Instructions on the appointment and conduct of forensic examinations and expert studies and Scientific and methodological recommendations on the preparation and appointment of forensic examinations and expert studies.
- Instructions on the appointment and conduct of forensic examinations, approved by order of the Ministry of Justice of Ukraine dated 08.10.1998 No. 53/5.
- Instructions on conducting forensic medical examination, approved by order of the Ministry of Health of Ukraine dated January 17, 1995 No. 6.
- The procedure for conducting a forensic psychiatric examination, approved by order of the Ministry of Health of Ukraine dated 8.10.2001 No. 397.
3. Persons authorized to appoint forensic expertise
Persons authorized to appoint a forensic examination:
- In criminal proceedings – the prosecution, the defense, the victim, the investigator, the investigating judge, the court.
- In cases of administrative offenses – a court, an official (body) conducting proceedings in cases of administrative offenses.
- In enforcement proceedings – a state bailiff.
4. Forensic Research Institutions of the Ministry of Justice of Ukraine
Forensic examinations and expert studies are conducted by subjects of forensic expertise defined in Article 7 of the Law of Ukraine “On Forensic Examination” – state specialized institutions, as well as forensic experts who are not employees of such institutions.
State specialized institutions include:
Forensic research institutions of the Ministry of Justice of Ukraine, which regionally serve the following areas:
- Dnipropetrovsk Research Institute of Forensic Expertise (Dnipropetrovsk and Zaporizhia regions);
- Donetsk Research Institute of Forensic Examinations (Donetsk and Luhansk regions);
- Kyiv Research Institute of Forensic Expertise (Kyiv, Vinnytsia, Zhytomyr, Kyiv, Ternopil, Khmelnytskyi, Cherkasy and Chernihiv regions);
- Crimean Research Institute of Forensic Examinations (Autonomous Republic of Crimea);
- Lviv Research Institute of Forensic Expertise (Volyn, Zakarpattia, Ivano-Frankivsk, Lviv, Rivne and Chernivtsi regions);
- Odessa Research Institute of Forensic Expertise (Kirovohrad, Mykolaiv, Odesa and Kherson regions);
- Kharkiv Research Institute of Forensic Expertise named after Honored Professor M. WITH. Bokarius (Poltava, Sumy, Kharkiv regions);
- Research Center for Forensic Expertise on Intellectual Property Issues (service area extends to all regions).
5. Expert services:
- Ministry of Internal Affairs of Ukraine:
- State Scientific Research Expert Forensic Center of the Ministry of Internal Affairs of Ukraine;
- Scientific research expert and forensic centers at the main departments of the Ministry of Internal Affairs of Ukraine in Crimea, Kyiv and Kyiv region, departments of the Ministry of Internal Affairs in the regions, Sevastopol and in transport.
- State Border Service of Ukraine:
- Main Forensic Expert Center of the State Border Guard Service of Ukraine.
- Security Service of Ukraine:
- Ukrainian Research Institute of Special Equipment and Forensic Examinations of the Security Service of Ukraine (ISTE SBU).
- Ministry of Defense of Ukraine:
Although the Law of Ukraine “On Forensic Expertise” provides for the activities of the expert service of the Ministry of Defense of Ukraine, the Regulations on the Ministry of Defense of Ukraine and the Regulations on the General Staff of the Armed Forces of Ukraine do not stipulate the implementation of forensic expert activities among the main tasks and functions.
6. Private forensic experts
A private forensic expert is a person who is not an employee of a state specialized expert institution, but has the necessary education, professional training, and is certified in the relevant expert specialty with entry in the State Register of Certified Forensic Experts.
Legal basis of activity:
- Article 7 of the Law of Ukraine “On Forensic Expertise”:
Forensic examinations are conducted both by state specialized institutions and by forensic experts who are not employees of such institutions.
Private experts have equal rights with experts from state institutions.
- Article 69 of the Criminal Procedure Code of Ukraine:
An expert may be a person who possesses scientific, technical or other specialized knowledge.
Has the right to conduct an examination subject to entry in the State Register.
Advantages of private experts:
- Independence:
- Lack of investigation of administrative subordination to pre-trial investigation bodies;
- Economic independence from state funding;
- The possibility of a more objective assessment of the circumstances of the case.
- Specialization:
- Deep specialization in narrow areas of knowledge;
- Using the latest techniques and equipment;
- Continuous professional development in a commercial environment.
- Flexibility:
- Faster examination times;
- Individual approach to each case;
- Possibility of consulting at all stages of the case.
- Accessibility:
- Work in different regions;
- Ability to travel to the scene of the incident;
- Flexible work schedule.
7. “Other professionals” in legal proceedings: legal problems and risks
Part 2 of Article 7 of the Law of Ukraine “On Forensic Expertise” provides for the possibility of involving “other specialists in relevant fields of knowledge” to conduct certain types of expertise that are not carried out exclusively by state specialized institutions.
Who are the “other experts”:
- Individuals who have specialized knowledge in the relevant field;
- Do not have the status of a forensic expert;
- Not included in the State Register of Certified Forensic Experts;
- They may be involved only by decision of the person or body that appointed the expert examination.
Categories of “other professionals”:
- Scientists and teachers of higher education institutions.
- Practitioners from relevant fields.
- Consultants of commercial organizations.
- Foreign experts (under special circumstances).
Legal issues of involving “other professionals”:
- Procedural status:
Problem: Ambiguity of the procedural status of “other specialist”:
- Is he responsible for a knowingly false conclusion?
- What procedural rights and obligations does such a person have?
- How to assess the competence of such a specialist?
Case law: Courts take different approaches to assessing the opinions of “other experts,” which creates legal uncertainty.
- Qualifications and competence:
Problem: Lack of uniform criteria for assessing qualifications:
There is no mandatory certification.
- There is no single standard for training.
- The complexity of checking the professional level.
Risks:
- Involvement of incompetent persons.
- Obtaining unreliable conclusions.
- Violation of the rights of the participants in the process.
- Responsibility:
Problem: Limited liability of “other professionals”:
- Lack of criminal liability under Article 384 of the Criminal Code of Ukraine.
- Limited civil liability.
- The difficulty of bringing to justice.
Procedural issues:
Problem: Unclear engagement procedures:
- Lack of clear selection criteria.
- Irregularity in the payment procedure.
- Uncertainty about the timing of the research.
European experience: in most European countries there is no institution of “other specialists” in forensic expertise. Expert activities are carried out only by certified experts or institutions that have the appropriate licenses.
8. Types of forensic examinations by procedure
1) Comprehensive expertise is an expertise conducted by experts of various specialties to resolve issues that require special knowledge in various fields of science, technology, art, craft, etc.
Examples of comprehensive examinations:
- Forensic and forensic examination in the study of crime tools and injuries;
- Fire and electrical expertise in fire investigation;
- Automotive and forensic medical examination in road accidents involving injuries to people;
- Construction, technical and economic expertise in the assessment of construction projects.
Features of a comprehensive examination:
- It is assigned when knowledge from different fields is required to solve problems.
- It is conducted by experts of various specialties (expert specialties).
- Each expert investigates those objects and resolves those issues that fall within his competence.
- Experts jointly analyze the results and formulate a general conclusion.
- The conclusion states what research each expert conducted, what facts he established, and what conclusions he reached.
- Experts competent in the relevant matters are responsible for the overall conclusion.
2) Commission expertise is an expertise conducted by a commission of experts from the same or different specialties.
Cases of appointment of a commission examination:
1. On the own initiative of the head of the expert institution in the event of:
- The particular complexity of the research;
- The significance of the case;
- The need to use different research methods.
2. By decision of the person (body) that appointed the examination
3. When conducting forensic medical examinations in cases of:
- Establishing the causes of death.
- Determining the severity of bodily injuries.
- Determining health status.
- Age determination.
- Other complex cases.
Features of the commission examination:
- The presiding expert is appointed by the head of the expert institution or a senior expert.
- The chairperson organizes the examination, but has no authority in evaluating the results.
- A joint conclusion is drawn up with unanimity among the experts.
- Separate conclusions are drawn when there are differences in the opinions of experts.
- The conclusion indicates the issues on which the experts agreed or disagreed.
- Each expert has the right to express his or her opinion separately.
3) A repeated examination is an examination that is ordered in cases where the conclusion of an expert or experts is unfounded or there are doubts about its correctness.
Grounds for ordering a re-examination:
- Unfoundedness of the conclusion of the primary examination.
- Doubts about the correctness of the conclusion: Use of inappropriate research methods.
- Violation of the examination procedure: Failure to comply with the requirements of the law when ordering or conducting an examination.
Features of the re-examination:
- It must be entrusted to another expert or experts.
- It cannot be conducted by the same expert who conducted the initial examination.
- The expert is provided with the materials of the primary examination.
4) Additional expertise is an expertise that is assigned if the expert opinion is insufficiently clear or complete or if new questions arise regarding previously investigated circumstances.
Grounds for ordering additional examination:
- Insufficient clarity of the conclusion.
- Incomplete conclusion.
- The emergence of new issues.
Features of additional examination:
- It may be entrusted to the same expert who conducted the initial examination.
- It may be assigned to another expert in the same specialty.
- The correctness of the initial conclusion is not questioned.
- Supplements or clarifies the initial examination.
- It is carried out on the basis of the same materials or with additional materials.
9. The difference between forensic examination and expert research
Forensic examination is a procedural action provided for by criminal, civil, economic, and administrative procedural legislation.
Characteristics of forensic examination:
1. Procedural status: Regulated by procedural law, the conclusion has the status of a source of evidence. The expert is criminally liable for a knowingly false conclusion.
2. Subjects of appointment: Investigator, inquirer, prosecutor, investigating judge, court, parties to the case (under certain conditions).
3. Grounds for conducting: Resolution of the investigator, inquirer; ruling of the investigating judge, court ruling; motion of the parties.
4. Procedural guarantees: The right of the parties to challenge the expert; the right to ask questions of the expert; the right to familiarize themselves with the conclusion; the right to request the appointment of an additional or repeated examination.
5. Consequences: The conclusion is subject to assessment by the court on an equal basis with other evidence; it can be used as the basis for a court decision; it can be appealed through an appeal of the court decision.
Expert research is research conducted by a person with specialized knowledge, outside of the framework of legal proceedings.
Legal status: not regulated by procedural law, has the status of written evidence.
Initiating entities: Any individuals, legal entities, lawyers, insurance companies, etc.
10. Expert study:
Grounds for conducting: Contractual research, letters of order, attorney’s mandate.
Purpose: Preliminary assessment of evidence, preparation for the trial, pre-trial resolution of disputed issues, insurance cases.
Consequences: Can be used as a basis for a motion to order a forensic examination, can be attached to the case as written evidence, has no prejudicial significance.
Transforming expert research into forensic expertise:
- Attachment to the case as written evidence.
- Request for a forensic examination based on the results of the study.
- Calling the person who conducted the research as an expert or witness.
- Assignment of a forensic examination to the same expert for procedural formalities.
11. Information that a lawyer can obtain from the Register
The State Register of Certified Forensic Experts is an official electronic database maintained by the Ministry of Justice of Ukraine with the aim of creating an information fund about persons who have received the qualification of a forensic expert in accordance with the procedure provided for by the Law of Ukraine “On Forensic Expertise”.
Information that a lawyer can obtain from the Register:
- Surname, first name, patronymic of the forensic expert.
- Information about the place of work – a state specialized institution or about forensic experts who are not specialists of a state specialized institution.
- Location, phone.
- The name of the Expert Qualification Commission or the Attestation Commission, the date and number of its decision or the date and number of the order on the assignment of qualification.
- Number and validity period of the certificate or document confirming the qualification of a forensic expert (if the issuance of a certificate is not provided for, an appropriate entry is made).
- Number and type of examination, index and type of expert specialty.
Lawyers’ mistakes when ordering expert opinions:
- Raising legal issues.
- Going beyond the expert’s competence.
- Providing copies instead of originals.
- Choosing an expert without checking the registry.