The conclusion of an expert in a criminal case. Appealing the conclusions of forensic examinations. The concept of expert opinion

In it hard times, which our society is experiencing, the fight against crime is one of the priorities of the state. An important weapon in such a struggle is forensic examination, which allows the most effective use of the latest achievements of science and technology in the investigation of a crime. The opinion of an expert is often important, and often decisive evidence in a criminal case.

The concept of expert opinion.

The expert opinion is a very peculiar source of evidence that is becoming more and more widely used in criminal proceedings.

The conclusion of an expert as evidence is a set of factual data contained in his report to the investigator and the court, and established as a result of the study of material objects, as well as information collected in a criminal case, carried out by a person who is knowledgeable in a certain field of science, technology or other special knowledge and using this knowledge.

The study is carried out, its course and results are recorded in compliance with the procedural order specified in the law. It is carried out on the basis of a special task of the investigating body, the prosecutor or the court.

Thus, for the conclusion of an expert as a type of evidence, it is essential that it:

appears in the case as a result of research;

It comes from a person who imparts certain special knowledge, without the use of which the study itself would be impossible;

is given in compliance with a specially established procedural order;

Relies on the evidence collected in the case.

The forensic expert, as a result of the study, establishes the circumstances, facts that are subject to proof in a particular case. Federal Law "On State Forensic Activities in Russian Federation» The main requirement for an expert opinion is its reliability (correctness and validity). If the research is carried out properly, the conclusion meets this requirement and is the only reliable one. Therefore, in legal proceedings there can be no "conclusion of the prosecution", "conclusion of the defense", the conclusion of an expert must always be objective. In case of doubt about the correctness or validity of the conclusion, the procedural legislation provides an opportunity to verify the correctness and correct the error, if it is made, by appointing and conducting a re-examination. Therefore, the adversarial principle, which rightly tends to expand in all types of legal proceedings, may relate to the expansion of the rights of the parties appointment of an examination: when posing questions, when choosing an expert institution or an expert, when evaluating the conclusion and resolving the issue of appointing an additional or repeated examination, but should not be implemented in the form of introducing an adversarial examination. Under this condition, of course, the party will invite and pay for the expert who, despite his independence from the state, will give an opinion in his favor. The presence of such experts in the process will not contribute to the clarification of the objective truth in the case and the issuance of a just decision

The evidentiary value of an expert opinion may be different. It depends on many circumstances - on what facts are established by the expert, on the nature of the case, on the specific judicial and investigative situation, in particular, on the totality of evidence currently available. Nevertheless, it is possible to make some general recommendations on assessing the probative value of the expert's opinion and point out the most common errors.

First of all, the probative value of the expert's opinion is determined by what circumstances he establishes, whether they are included in the subject of proof in the case or are evidentiary facts, evidence. Often these circumstances are decisive, the fate of the case depends on them (for example, belonging to the category of drugs, firearms, whether the driver has the technical ability to prevent a collision, etc.). The conclusion of the expert in such cases becomes extremely important in the case and therefore is subject to particularly careful verification and evaluation.

In other cases, when the facts established by the expert are not included in the subject of proof, they are circumstantial evidence. Their evidentiary value may be different. The expert's conclusions about individual identity (identification of a fingerprint, footprints of shoes, etc.) have the greatest force. In practice, such facts are considered very strong, and sometimes irrefutable evidence. It really is. However, under one condition - if the identified trace could not be left under circumstances not related to the crime. The greater the likelihood, the lower the probative value of such a conclusion. In addition, the possibility of deliberate falsification of the trace cannot be discounted. In practice, there are cases, although few in number, of such falsification: in particular, the transfer by police officers of a suspect's fingerprint to material evidence.

Weaker, in comparison with the establishment of individual identity, evidence is the expert's conclusion about the generic (group) affiliation and the object. It acts as an indirect proof of such an identity. Its probative significance is all the more so, the narrower the class to which the object is assigned. For example, matching a blood type means only about a 1/4 chance that the blood came from that person (since there are 4 blood types). For example, the following conclusion has even less probative force: “The substance of the layer on the soil refers to a low-quality gear oil that does not have any specific features,” since this oil is widely used in vehicles. Usually, experts, referring an object to a certain class, give a description of this class, indicate its prevalence. For example, a soil expert, stating that the studied soil samples belong to the group of carbonate, slightly clogged with foreign impurities, notes that this type of soil is widespread and characteristic of the area. If this is not done, then this circumstance must be clarified during the interrogation of the expert, otherwise it is impossible to determine the probative value of such a conclusion. For example, a conclusion like: “The studied rubber particles and rubber samples from the right rear wheel of car no. have a common generic affiliation, i.e., they belong to rubbers made according to the same recipe,” it is impossible to estimate without knowing how many such recipes exist.

Thus, the probative power of the expert's conclusions about the generic (group) affiliation of an object is inversely proportional to the degree of prevalence of the class to which the object is assigned (by the way, this pattern applies to any indirect evidence - the rarer, more unique a feature, the higher its price as evidence , and vice versa, if it is widespread, characteristic of many objects, then its incriminating power is less). Therefore, knowledge of this degree of prevalence is a necessary condition for the correct assessment of the probative significance of the conclusion.

The conclusions of the expert, which are circumstantial evidence, can form the basis of the verdict only in conjunction with other evidence, they can only be a link in such a combination. Therefore, their role also depends on the specific situation in the case, on the available evidence. Often they are used only at the initial stage of the investigation to solve the crime, and later, when direct evidence is obtained, they lose their value. For example, if the accused gave detailed truthful testimony, showed the place where the corpse or stolen things were hidden, and the like, then the investigation and the court will no longer be interested in the expert’s conclusion about the origin of the soil from his boots, although he played an important role in solving the crime. However, when the case "goes" on circumstantial evidence, then each piece of evidence acquires special significance, including the expert's conclusions, which in other conditions are not of particular value.

What are the most common errors in assessing the probative value of such expert conclusions? First of all, this is when the investigation and the court perceive them as a conclusion about individual identity. Thus, the conclusion about the same generic or group affiliation of soil samples is sometimes perceived as a conclusion about their belonging to a particular area. Meanwhile, as it was pointed out, belonging to any, as a narrow group, is not equivalent to individual identity, it is only indirect evidence of such identity.

In the aforementioned case of U., convicted of rape and murder of a young girl, the court indicated in the verdict that the forensic biological examination established the origin of the sperm found on the victim from U., while the examination established only her general group affiliation and such rough the mistake was made by the court of the second link, moreover, in the case of a particularly dangerous crime.

The evidentiary significance of the expert's conclusion also depends on the logical form of the conclusions.

For many years, the question of the probative value of the probable conclusions of an expert has been controversial. Many authors believe that such conclusions cannot be used as evidence, but have only orienting value. Others base their admissibility. There is also no unity in the jurisprudence on this issue. Some judges refer to them in their judgments as evidence, while others reject them. However, in any case, it must be borne in mind that the probative value of such conclusions (if recognized as such) is much lower than categorical ones, they are only indirect evidence of the fact established by the expert.

Conclusions in the form of judgments of possibility, as indicated, are given in cases where the physical possibility of an event or fact is established (for example, the possibility of spontaneous combustion of a substance under certain conditions, the possibility of spontaneous movement of a car in a braked state). Such conclusions also have a certain evidentiary value. However, it should be noted that they establish only the possibility of an event as a physical phenomenon, and not that it actually took place. Their probative value is approximately the same as the result of an investigative experiment establishing some kind of event. Meanwhile, courts are sometimes interpreted as inferring actual events. For example, how an expert's conclusion about the possibility of a "spontaneous" shot without pulling the trigger is interpreted as a conclusion that such a shot took place. The probative value of an alternative conclusion, in which the expert gives two or more options (for example, this sheet of text originally had the number “1” or “4”), is that it excludes other options, and sometimes allows, in conjunction with other evidence come up with one option.

Conditional conclusions (such as: “The text is not printed on this typewriter if its font has not changed”) can be used as evidence only if the condition is confirmed, which is established by a non-expert, but by an investigative way.

The expert opinion, like all other evidence, has no predetermined force and is evaluated according to general rules, i.e., by inner conviction. The law explicitly states that an expert opinion is not mandatory for the person conducting the inquiry, the investigator, the prosecutor and the court, but their disagreement with the conclusion must be motivated.

Nevertheless, although the expert opinion does not have any advantages over other evidence, it has a very significant specificity in comparison with them, since it is a conclusion, an inference made on the basis of a study conducted using special knowledge. Therefore, its assessment often presents a considerable difficulty for persons who do not have knowledge. For the same reason, judicial errors are most often made when using this particular type of evidence.

In practice, excessive confidence in the expert's opinion, an overestimation of its evidentiary value, is quite common. It is believed that since it is based on accurate scientific calculations, there can be no doubt about its reliability. Although such an idea is not expressed directly in the verdicts and other documents, the trend towards this in practice is quite strong.

Meanwhile, the expert's conclusion, like any other evidence, may turn out to be doubtful or even incorrect for various reasons. The expert may be presented with incorrect initial data or non-genuine objects. The methodology applied by him may not be sufficiently reliable and, finally, the expert, like all people, is also not immune from errors, which, although rare, are still found in expert practice, therefore, an expert opinion, like any other evidence, must be subjected to thorough comprehensive verification and critical appraisal.

How should an expert opinion be judged?

First of all, it should be checked whether the procedural procedure for appointing and conducting an examination, the procedure provided for by law, has been observed. At the preliminary investigation, this procedure includes familiarizing the accused (in some cases, the suspect) with the decision to appoint an expert examination and explaining to him his rights that he has during the examination. After the end of the examination, the accused must be familiarized with the expert's opinion (or his message about the impossibility of giving an opinion), while he again acquires a number of rights. In practice, these requirements are not always met, especially when an expert examination is carried out before a person is involved as an accused.

The court is not bound by the wording of the questions proposed by the participants in the trial, but their rejection or change must be motivated.

It should be noted that these rules are not always observed by the courts. In a number of cases, instead of a ruling, the court gives the expert a “list” or “list” of questions or other documents not provided for by law. Sometimes the courts do not draw up any document at all, but simply refer to the expert questions submitted by the participants in the trial. Thus, the courts are actually eliminated from formulating questions, leaving it entirely to the participants in the trial. This often entails posing incorrectly formulated, illiterate questions to the expert, or questions that are not relevant to the case or go beyond the competence of the expert. Naturally, the conclusions of an expert on such issues, if they are given to them, have no evidentiary value.

Failure to comply with the procedure established by the procedural law for conducting an examination at a court session may serve as one of the grounds for the cancellation of a sentence. So, the Judicial Collegium for Criminal Cases of the Supreme Court of the Russian Federation, canceling the verdict in the case on charges of P., indicated, in particular: “As one of the evidence confirming the commission of P., a crime in a state of sudden strong emotional excitement, the court referred to the forensic psychological examination that P. was in a state of prolonged psychological stress. However, this examination itself was appointed and carried out in violation of the Code of Criminal Procedure. According to the requirements of the Code of Criminal Procedure of the Russian Federation, when deciding on the appointment of an examination, in order to ensure the rights and interests of the parties involved in the case, the presiding judge had to ask the parties questions in writing, announce and discuss them, and then formulate the necessary questions for the expert. Having received a written opinion from the expert, the court had to ensure his participation in the court session. After the expert announced the conclusion, which is attached to the case along with questions, he could be asked questions on the merits of the answers given by him. All these requirements were not met by the court. Under such circumstances, there is no reason to consider the sentence against P. lawful and justified.

As you know, it is often impossible to establish the truth in various categories of cases (criminal, civil, arbitration, administrative, tax, customs) without special knowledge in various fields: science, technology, art or craft.

Expert activity in our country is regulated by the Federal Law of the Russian Federation “On State Forensic Expert Activities in the Russian Federation” dated May 31, 2001 No. No. 73-FZ and a number of by-laws and departmental regulations. In accordance with the law, the purpose of expert activity is to establish evidentiary facts with the help of special knowledge.
Modern opportunities for forensic examinations are great, several dozen types of various examinations are appointed and carried out in the country, contributing (if they are carried out correctly and scientifically substantiated) to establishing the truth in a case, protecting legally protected interests, rights and freedoms of principals.

Unfortunately, as in any other field of activity, in recent years, in practice, more and more often one has to deal with improperly conducted and scientifically unfounded expert opinions, which one has to “fight” by substantiating their scientific groundlessness, inconsistency and the need to appoint additional, repeated, commission, complex examinations.

It has long been accepted in practice (many do it now) that the expert's opinion is indisputable evidence in the case, not subject to dispute. And this, despite the fact that the law itself - part 2 of article 17 of the Code of Criminal Procedure of the Russian Federation and the guiding explanations of the Plenum of the Supreme Court of the Russian Federation expressly provides that no evidence in the case has a predetermined force.
In a country where, as is known, both in the pre-perestroika and especially in the perestroika period, diplomas of specialists were acquired (and are being acquired now) not only and not so much by knowledge, but often through other mechanisms, the appearance of "specialists" who do not know the subject of their specialty is not uncommon. The practice is also replete with facts of deliberate distortion by experts, for various reasons, of the initial data of the subject of research, other violations of the principle of independence of experts, in order to draw up a “necessary” conclusion for the interested party.

The process of reforming all aspects of public life, incl. and in the field of expert activity, led to the emergence, along with state, and numerous "independent" expert institutions, which, on the one hand, is a positive phenomenon, because. allows the principle of competition to manifest itself in the search for scientific truth, and on the other hand, taking into account the well-established mentality of our “specialists” and the material side of the issue, it leads to results inversely proportional to the goals laid down in the law.

In accordance with the current legislation, state forensic institutions belong to the system of bodies of the Ministry of Justice of the Russian Federation. However, there are also departmental expert institutions, in particular, in the system of the Ministry of Internal Affairs of the Russian Federation, the Federal Customs Service, the Federal Security Service, which essentially led to the fact that, being recognized as state forensic institutions, they simultaneously subordinate to the same executive authorities as the investigative apparatus, the bodies of inquiry.

It is more than obvious that, in accordance with the current legislation, the fundamental principle of expert activity is principle of independence both the expert activity itself and the persons carrying it out to achieve the goal laid down in the law.
However, practice is replete with numerous facts dependencies expert opinions from various factors not based on the law, which adversely affects the legally protected rights, freedoms and interests of legal and individuals and contradicts the goals laid down by the legislator in the Law of the Russian Federation on state forensic activities and other (industry) laws regulating expert activities.

The main reason for this state of affairs in expert (however, as in many other types) activities is seen in the absence of a legal mechanism (legal balance of norms) ensuring the impossibility (or at least significant difficulty) of violating the principle of independence of expert activity and ensuring its compliance with the goals laid down by the legislator.

As you know, there is an expression: "Two lawyers - three opinions." The implementation of the rules of law, as you know, is called law enforcement, which directly depends on the adequate thought of the legislator of the interpretation of the rules of law by law enforcers. Is it possible to count that hundreds of thousands (if not millions) of law enforcement officers of our vast country unanimously understand the thought of the legislator, incorporated in the rule of law, and in accordance with this thought they implement the norm?
It seems that this is tested by practice, and practice convincingly confirms that such a calculation and assumption are sweeping. The theory of law has developed numerous types of interpretation of law ( legal regulations) none of which I dare say cannot replace the interpretation by the legislator of the norms issued by him.
As you know, and unfortunately, in our country this type of interpretation is practically not used, with rare exceptions. (for example, the resolutions of the State Duma of the Russian Federation on the application of acts of amnesty).
Neither the decisions of the Plenum of the Supreme Court of the Russian Federation, nor, moreover, other types of interpretation of the existing legal norms (except for the decisions of the Constitutional Court of the Russian Federation) cannot replace the interpretation of the rules of law by the legislator himself in order to establish a practice of uniform understanding and application of the rules of law.

As a result, we have what we have. Everyone is free to understand the current rules of law as he wants in each specific case of applying this rule. The trouble is also that the judiciary, designed to be also independent power and be guided by the rule of law, in practice, in their vast mass, cover all the flaws of the preliminary investigation bodies (including expert institutions), which does not contribute to the process of establishing a uniform understanding and application of the current rules of law, not to mention the perniciousness of this process for the entire justice system and constitutional guarantees of the right to a defense.

So, the Moscow Regional Bureau of the SME on one of the criminal cases on charges of the brothers B.E. and B.D. in the double murder, a number of forensic examinations were carried out on the appointment of the prosecutor's office: forensic biological; molecular genetic; forensic; medical forensic. Despite the established by law (part 6 of article 11) unified scientific and methodological approach examinations in each BSME, upon acquaintance with the numerous conclusions of the experts of this Bureau, the following contradictory conclusions of the experts of the same Bureau were established, which, nevertheless, formed the basis of the guilty verdict, by which the brothers B.E. and B.D. found guilty and each sentenced to 17 years in prison.

By the conclusion of the biological examination of material evidence on the blade and handle of the knife found in the apartment of the murdered, the expert established the presence of traces of mixed blood, in which agglutigens "A" and "B" were found, characteristic of blood types "A" - Pgr., "B" - Shgr. and "AB" - 1Ugr.
Examination of the blood of the accused by the same expert established that the accused B.E. - "Va" - Shgr. blood. Based on this, and "without noticing" that agglutigen "B" is characteristic not only of group III, but also of group 1U. blood - “AB”, without motivating his conclusion, the expert writes that “the presence of the blood of the accused B.E. on the specified knife is not ruled out." At the same time, it becomes unclear if the expert was independent and was strictly guided by the requirements of the Law of the Russian Federation “On State Forensic Expert Activities in the Russian Federation” dated May 31, 2001. FZ-73, incl. Article 8 of the Law, on the scientific validity of expert opinions, then, why in his conclusion, recognizing the agglutigen "B" as characteristic of 1U gr. - For the sake of objectivity and fairness, "AB" did not indicate that the belonging of this blood to another person with the "AB" blood type is not excluded?

In connection with the statements of the accused that they have an alibi and that they were on their way to the house during the murder indicated by the investigating authority, in connection with which, the impossibility of finding them at the scene of the crime and leaving any traces of blood, and also in connection with available documentary evidence that there were no injuries on their bodies during their detention ( from which blood would flow) not detected another expert of the same SME Bureau by order of the court was made re-examination blood B.E., which established that the blood of the accused B.E. really belongs to the "Va" group, i.e. SH group, but has a concomitant "H" antigen (which was not detected during the initial examination of his blood by another expert of the same bureau).

It seems that one does not need to be an expert in order to understand that concomitant blood antigen, not a temporary resident of the organism, but an antigen permanently inherent in this blood from the moment of birth of a given individual until his death.
In this regard, it seems natural, due to the laws of logic, that if a given person, whose blood is characterized by the concomitant antigen “H”, would leave a trace of his blood on any object, then this trace of blood must necessarily be present and be associated antigen "H" detected , which was not found on the blade and handle of the knife by the previous expert of the same bureau.

Unfortunately, the Moscow Regional Court (and subsequently the collegium of the Supreme Court of the Russian Federation) “did not notice”, or rather did not want to notice this significant contradiction in the examinations, while with strict observance of the requirements of the current legislation, both criminal procedure and and about expert activities, the non-detection by the expert who examined the knife with which the murder was committed of the accompanying antigen “H” in mixed blood suggested the need to give an opinion that the presence of the blood of the accused B.E. on the specified knife excluded.

The case that is being described is a vivid example of a gross violation of the requirements of the Law of the Russian Federation “On State Forensic Expert Activities in the Russian Federation” and Articles 198 and 204 of the Code of Criminal Procedure of the Russian Federation in the field of appointing and conducting examinations, both by experts and by investigative and judicial authorities and is a vivid illustration of the violation of the principle independence experts and expert activities.

It seems that it is necessary to clarify the content of the term "independence" for an appropriate understanding and assessment of compliance with this principle in the appointment and conduct of examinations.
In the dictionary of the Russian language S.I. Ozhegov, the term "independent" is defined as "independent, not subordinate, free .... regardless of anyone, out of touch with someone - something, without limiting, regardless of someone - anything.

In Art. 7 FZ-73 dated 31.05.01 the independence of the expert is defined as follows: “... he cannot be in any way dependent on the body or person who appointed the forensic examination, the parties and other persons interested in the outcome of the case .... It is not allowed impact by the courts, judges, bodies of inquiry, persons conducting the inquiry, investigators and prosecutors, as well as other government agencies, organizations, associations and individuals in order to obtain an opinion in favor of any of the participants in the process or in the interests of other persons.
Rossinskaya E.R. in his book: “Forensic examination in civil, arbitration, administrative and criminal proceedings”, NORMA publishing house, Moscow, 2005, p. procedural requirements are not enough…In real life There are many ways to put pressure on an expert or the head of a forensic institution. The head of an expert institution may, for example, at the direction of one of the superiors, transfer the examination to another expert if the conclusion made by the initially appointed expert does not suit someone.

In practice, there are other sophisticated ways of violating the principle of independence and even direct deliberate falsification of expert opinions to please the investigating authorities, especially when it comes to forensic expert institutions of the system of the Ministry of Internal Affairs of the Russian Federation. So, in the above-mentioned murder case, the initial operational actions and the detention of the suspects were carried out by employees of the Dolgoprudny Department of Internal Affairs. In connection with the discovery of 5 fingerprints at the scene, a fingerprint examination was appointed in the case, which was entrusted to “expert” M. (in the conclusion he is called and signed “chief specialist”) of the ECC of the Mytishchi GUVD, i.e. body to which the Dolgoprudnensky Department of Internal Affairs is subordinated.
From the protocol of inspection of the scene, it is known that all 5 fingerprints were taken on sticky tape and transferred to white photographic paper. The crime, according to the materials of the case, was committed on June 14, 2004. A fingerprint examination was appointed on August 10, 2004, to resolve which the question was raised whether the fingerprints seized from the crime scene belonged to the accused B.D. and B.E. More than a month later on September 18, 2004. “expert” M. concluded that the traces of two fingers (allegedly found at the crime scene) belong to the accused B.E. Since throughout the preliminary and trial investigation, the accused B.E. denied his involvement in this crime, and stated his alibi, as well as the presence of a hereditary hand disease - “acrodermatitis”, during the judicial investigation, the court ordered an additional fingerprint examination, which, despite the protests of the defense, was entrusted to the same “expert” of the ECC of the GUVD MO - M., who naturally confirmed his previous conclusion.

However, an objective analysis of the available case materials and the conclusions of the “expert” M. testifies to the gross falsification of material evidence by the investigators, about which “expert” M. could not have been unaware of, at whose disposal the case materials were provided, from which it is seen:
- according to the protocol of inspection of the scene, traces of fingers were seized on adhesive tape and transferred to white photographic paper;
- expert M. was given fingerprints for examination, seized on light-colored film (on non-adhesive tape with transfer to photographic paper);
- the dimensions of the traces themselves and copying materials according to the protocol of the inspection of the scene were:
- the size of the first trace is 12x20mm, the size of the adhesive tape copying it is 30x35mm;
- the size of the second track is 20x25mm, the size of the tape copying it is 40x40mm;
- “expert” M. is presented for examination of a dactyl film (and not sticky tape pasted on white photographic paper) with dimensions:
- the first trace is 17x21mm, and the film itself is 25x29mm;
- the second trace is 20x31, and the film itself is 31x39mm.

The statements of the accused B.E. that on the eve of the date of the Expert's Conclusion dated 18.09.04, i.е. 17.09.04 he was brought from the Volokolamsk pre-trial detention center to Dolgoprudnensky, where he was taken to the office of the head of the CID, who in a conversation offered him various drinks, from which he chose coffee and he was asked to pour coffee from a can into a cup of coffee, after which he drank this coffee and, apparently, then the traces of his fingers were removed from the specified jar and cup and thrown into the case, no one (including the court) took into account.

In part 2 of Art. 204 of the Criminal Procedure Code of the Russian Federation expressly states: “If, during the forensic examination, the expert establishes circumstances that are important for the criminal case, but about which he was not asked questions, then he entitled point them out in your conclusion.
As can be seen from the above example, "expert" M., who had at his disposal the reports of the inspection of the scene, from which he knew that all 5 fingerprints were taken on adhesive tape and transferred to white photographic paper, nevertheless, did not reflect in his conclusion that there are discrepancies in the objects that were seized from the scene with the objects that were presented to him for examination in the form of light-colored fingerprint films, and not sticky tapes.

It was also established in the case that, contrary to the requirements of the current legislation on forensic activities, in particular Article 13 of FZ-73 dated 31.05.01. on the attestation of experts for the right to independently conduct forensic examinations and the issuance of Certificates of this, the validity of which according to the law is 5 years, M. was admitted to the fingerprint examinations indicated in the murder case, despite the fact that he had a Certificate for the right to independently conduct judicial examination dated 1998. ceased to operate after the expiration of the statutory 5 years in 2003. and no other Certificate of recertification was presented to either the investigating authority or the court, which indicates that M. was not an expert and did not have the rights and powers to independently produce fingerprint examinations. Despite this, the brothers B.E. and B.D. convicted incl. and with reference to these examinations, to 17 years in prison.

And there are many such examples.
In the criminal case of Ch., accused under Articles 161, 131, 132 of the Criminal Code of the Russian Federation, investigated by the Chekhov City Prosecutor's Office of the Moscow Region and now being considered by the Chekhov City Court, it is seen from the case materials:
On 07.05.06, the victim R. was sent by the investigator of the prosecutor's office, after receiving an oral statement from her about the rape. for examination in the hospital. At the same time, the investigator, contrary to the requirements of part 2 of article 179 of the Code of Criminal Procedure of the Russian Federation, does not issue any decision on this, but directs letter the head physician of the maternity hospital, in which, along with a request to examine the victim R. for bodily injuries in the genital area instructs the staff of the maternity hospital: remove smears on gauze swabs samples of vaginal contents, anus, oral cavity, pubic hair count providing them with the appropriate signatures and packaging (with the presentation of separate gauze samples for which the seizure was made). That is, by letter (and not by resolution), the investigator instructs the employees of the maternity hospital, without witnesses, to carry out investigative actions, incl. and packaging of material evidence.

In the “document” compiled by the staff of the maternity hospital no date, named by them “Examination”, along with a statement of the absence of any external and internal injuries in the victim R., it was indicated that the examined woman had “moderate discharge from the vagina at the time of the expected menstruation. At the request of the prosecutor's office ... the material was taken on cotton swabs (the letter from the prosecutor's office asked for gauze) the contents of the vagina, anus, from the mouth, counting the hair from the pubis. At the request of the prosecutor handed over to the examined R. upon presentation of her passport.”

As can be seen from this “Surveillance”, it does not contain any information about the packaging of these biological objects, the provision of any packages with “appropriate inscriptions and signatures” and “the supply of these packages separately with gauze samples for which seizures were made.”
However, by the end of the investigation, a protocol appears in the case seizures, allegedly by the investigator of the prosecutor's office on 11.05.06. (i.e. 4 days after survey) in specified maternity hospital:
"-samples of the contents of the vagina, oral cavity, rectum on cotton-gauze swabs;
-sches hair from the pubis R., packed in a paper bag, sealed with paper, on which there is an explanatory text 7 / U-06, R.
-Plastic bag, in which is tampon hygienic, seized from R. during the medical examination, provided with a similar explanatory signature.
It is more than obvious that the protocol of seizure dated 11.05.06 was falsified by the investigator, because in the "Examination" of the maternity hospital, firstly, there is no information about the packaging and labeling of any packages; secondly, it is indicated that all the seized samples, at the request of the prosecutor's office handed over to R.; thirdly, it does not appear to be seized at all and packed in a plastic bag hygienic tampon R.
Despite these numerous violations of the requirements of the Code of Criminal Procedure of the Russian Federation, the conclusions of the forensic biological and molecular genetic examinations of the indicated Bureau of the Ministry of Economics and Security of the Ministry of Defense recognized traces of his sperm found at the indicated objects and belonging to the accused Ch..

In recent years (however, as before), gross violations of the rights of the accused and defendants to defense in the form of deprivation of their rights under Articles 195, 198 of the Criminal Procedure Code of the Russian Federation during the appointment and production of certain examinations in the case have become the rule.
The accused and his defense counsel are informed of the appointment of an expert examination in the case, contrary to the requirements of Part 1, Article 198 of the Criminal Procedure Code of the Russian Federation not at her appointment, and after the investigation body receives an expert opinion, and most often not immediately upon receipt, but towards the end of the investigation.
It is more than obvious that in these cases, the accused and his defense counsel are deliberately and artificially deprived of a whole range of essential rights provided for by Article 198 of the Criminal Procedure Code of the Russian Federation, incl. and the right to raise questions before the examination, to choose an expert institution and the expert himself, to challenge the expert on certain legal grounds, and others.

Unfortunately, the tendentiousness of our judicial system, and a clear bias towards the prosecution, leads to the fact that, despite the obvious violation by investigators of the requirements of the Code of Criminal Procedure of the Russian Federation and the right of the accused to defense, as well as the powers of the defense counsel as an equal participant in the process, despite the formal existence judicial mechanism for recognizing this kind of evidence as inadmissible - Art. 7, 75, 125 Code of Criminal Procedure, overwhelming majority of the country's judiciary with the notorious reference that "The court cannot enter into the evaluation of evidence” at this stage of the process, refuse to recognize this kind of “evidence” as inadmissible, while it is certainly collected in violation of the procedure established by the Code of Criminal Procedure of the Russian Federation.

No one at this stage requires the court to enter into the assessment of evidence. It's about about the evaluation court compliance with the Code of Criminal Procedure of the Russian Federation when obtaining evidence. In the aforementioned criminal case on murder, three members of the Moscow Regional Court who considered this criminal case, with obvious facts of violation of the requirements of the Code of Criminal Procedure of the Russian Federation regarding the timely familiarization of the accused and their defense lawyers with the decisions on the appointment of numerous examinations in the case and the examinations themselves, with which they were 3 to 5 months after their appointment and conduct, managed, in the event of a refusal to satisfy a lawfully and reasonably declared defense petition, to arbitrarily interpret the current criminal procedure legislation, indicating literally the following: “The law does not indicate the moment at which to acquaint the accused and his defense with the decision on the appointment of an examination. "at appointment expertise.. ”and compliance with the requirements of part 1 of article 17 of the Criminal Procedure Code of the Russian Federation that judges must be guided by “law and conscience” when assessing evidence would not allow such a free interpretation of the current law and the expression “when appointing an examination” to be interpreted as an opportunity to familiarize the accused with the decision on appointment of an examination not “at the appointment”, but after the examination.

It seems that one of the reasons for the continued violation of these important rights, both of the accused and their defense lawyers, is the insufficient perfection of the current version of this rule in its systemic interpretation with other rules of the current legislation on expert activity. I believe that the inclusion in the Law of the Russian Federation "On forensic activities in the Russian Federation" No. FZ-73 dated 31.05.01. the rules that "Expert institutions (experts) are not entitled to accept for examination materials on the appointment and production of examinations without the body (person) who appointed the examination of the protocol of acquaintance of the accused (defendant) and his defense counsel with the resolution (determination) on the appointment of this examination" would largely (although not completely) eliminate numerous violations in this area.

It seems that a priori such an obligation exists for expert institutions and experts even now, based on the following analysis of the current legislation. The Code of Criminal Procedure of the Russian Federation was adopted later than the Law of the Russian Federation “On State Forensic Activities in the Russian Federation” and, therefore, based on the legal hierarchy of the Federal Laws, it has greater legal force than the Law of the Russian Federation No. FZ-73 of 31.05.01. Article 3 No. FZ-73 states that the legal basis for state forensic activities is the Constitution of the Russian Federation, a number of other laws, incl. Code of Criminal Procedure of the Russian Federation. In Article 4 of the Federal Law "On the Enactment of the Code of Criminal Procedure of the Russian Federation" dated 05.12.2001. indicated that operating on the territory of the Russian Federation federal laws(i.e., it must be assumed that FZ-73 of 05/31/01) and other legal acts related to the Code of Criminal Procedure of the Russian Federation (of course, FZ-73 is associated with the Code of Criminal Procedure of the Russian Federation on issues of expertise) be brought into line with the Code of Criminal Procedure of the Russian Federation. And further stated: “Pending bringing the said federal laws and other normative legal acts into conformity with the Code of Criminal Procedure of the Russian Federation are applied in the part that does not contradict the Code of Criminal Procedure of the Russian Federation”.

In article 4 of the Federal Law-73 of 31.05.01. on the principles of state forensic activity the principle of observance of the rights and freedoms of man and citizen.
Article 5 of the Federal Law-73 dated 31.05.01. affirms the principle legitimacy forensic activities subject to the exact fulfillment of the requirements of the Constitution of the Russian Federation and other regulatory legal acts that constitute the legal basis for this activity (i.e., within the meaning of Article 4 of the same law and the Code of Criminal Procedure of the Russian Federation).
Article 6 of this law directly regulates the observance of the rights and freedoms of a person and a citizen in the implementation of forensic activities.

An objective analysis of the norms mentioned above, along with the constitutional right of every citizen of the Russian Federation to protection, seems to make it possible to assert that since in the Federal Law-73 of 31.05.01. it is stated that its legal basis is the Constitution of the Russian Federation and the Code of Criminal Procedure of the Russian Federation, the principles of protecting the rights and freedoms of man and citizen are approved, the law of the Russian Federation on the introduction of the Code of Criminal Procedure of the Russian Federation into force dictates the need to bring all laws in line with it and until they are brought into line, they are subject to application in parts that do not contradict the requirements of the Code of Criminal Procedure of the Russian Federation, It seems based on the current Constitution of the Russian Federation and the above norms of the current legislation, the conclusion that experts are not entitled to accept materials for the production and conduct of an examination, in the absence of proper data on familiarization of the suspect (accused, defendant) and their defense lawyers with the decision (determination) on the appointment of this examination, i.e. observance of the rights of these participants, provided for by Article 198 of the Code of Criminal Procedure of the Russian Federation.

Since the Constitution of the Russian Federation itself (Article 18), repeated decisions of the Constitutional Court of the Russian Federation, affirm the principle according to which “the rights and freedoms of man and citizen are directly applicable and determine the meaning, content and application of laws ... and are provided with justice ... and nothing can be the basis for their derogation (Article 21) ” , the federal laws themselves (No. FZ-73 of 31.05.01 and the Code of Criminal Procedure of the Russian Federation) affirm this principle, the right to defense is not only a criminal procedure, but, above all, a constitutional right, it seems that Article 199 of the Code of Criminal Procedure of the Russian Federation should be supplemented part 6 of the following content:
Part 6 “If there is no protocol in the materials sent for the examination of the protocol of acquaintance of the accused (suspect) and his defense counsel with the decision on the appointment of an examination, the expert is obliged to return without execution the decision on the appointment of a forensic examination and the materials submitted for its production with an indication of the reasons for the return.” A similar addition should be made to Art. 14 and 16 No. FZ-73 dated 31.05.01. "On state forensic activities in the Russian Federation", regulating the duties of the head of an expert institution and an expert.

Facts of incompetence or insufficient competence of experts are increasingly being revealed in recent years in numerous criminal cases. Despite the requirements of the Law on state forensic activities in the Russian Federation, and numerous Instructions of the Ministry of Justice of the Russian Federation on the scientific validity of expert opinions and compliance with the methods for producing expert examinations, lightly counting on the lack of special knowledge of the participants in the process, as well as on the basis of other motives not based on the law, unscrupulous and insufficiently competent experts are increasingly presenting to the investigative and judicial authorities conclusions that are “convenient” for them, but absolutely not in accordance with the current legislation and the current Methodological recommendations of the Ministry of Justice of the Russian Federation (Ministry of Health of the Russian Federation). There are many reasons for this. In this book, Academician Rossinskaya E.R. rightly notes that “The question of how well the conclusion is drawn up, i.e. the issue of evaluating the expert opinion is very difficult, since judges do not have special knowledge and it is difficult for them to modern conditions scientific and technological revolution, when expert methods are becoming more and more complicated, to deeply understand expert technologies. Judges evaluate the expert's opinion mainly on formal grounds.

Agreeing with this opinion, I will only note that not only the judges, but also the parties to the process give an assessment of the expert’s opinion: the prosecution and the defense, and for an adequate assessment of these conclusions, the indicated participants in the process need knowledge, at least of those formal signs that the expert opinions must correspond to.
The list of these formal features, which the conclusion of an expert in criminal cases must comply with, is given in Article 204 of the Code of Criminal Procedure of the Russian Federation. Clause 4, Part 1, Article 204 of the Criminal Procedure Code of the Russian Federation does not require information in the expert's opinion on his attestation for the right to independently conduct a forensic examination, the availability of a Certificate of attestation and the time it took to pass the attestation. Meanwhile, Article 13 of the Law of the Russian Federation “On State Forensic Activities in the Russian Federation” recognizes that it is possible to occupy the position of an expert in a state forensic expert institution only for citizens of the Russian Federation “ have undergone further training on a specific expert specialty..”, and in part 2 of this norm it is stated that “Determining the level of professional training of experts and certification of them for the right to independently conduct a forensic examination are determined by expert qualification commissions. The level of professional training of experts subject to review every five years.”

It seems that this is not an idle requirement of the law, since in article 4 of the same law, which established the principles of state forensic activity, one of the important principles is the principle of conducting expert research using contemporary achievements of science and technology. In close connection with these norms are the requirements of Article 8 of the same law that the expert's research should be carried out on a strictly scientific and practical basis and expert opinion must be based on the provisions enabling check validity and validity conclusions drawn on the basis of generally accepted scientific and practical data.

It seems that the above analysis of the current legislation on forensic activities implies the need for a mandatory indication in the Expert Conclusion, in addition to the data on the expert provided for in Article 204 of the Code of Criminal Procedure of the Russian Federation, also information about his attestation, the number and date of his Certificate of the right to independently conduct forensic examinations . As shown above, the absence of such information in the Expert Conclusion leads in practice to the fact that persons (employees of the expert institution) who do not have the mentioned Certificate (or its period has already expired, and there was no new attestation) are involved in the examination they cannot be recognized by experts and the conclusions signed by them should not be recognized as evidence in the case. In the aforementioned criminal case on murder, “expert” M., who does not have a Certificate of recertification within the time limits established by law, who signed 3 conclusions of a fingerprint examination, signed under them not as an expert, but as a “Chief Specialist of the ECC GUVD” and on these Conclusions, contrary to the requirements of Article 25 of the Law No. FZ-73 dated 31.05.01. there was a seal not of a “state forensic institution”, but a seal of “No. 67” of the Dolgoprudny police department. Even the Moscow Regional Court, and later the collegium of the Supreme Court of the Russian Federation, did not pay attention to this, condemning persons to long years of imprisonment.

By the way, in Article 204 of the Code of Criminal Procedure of the Russian Federation there is no requirement at all for a seal, which must be used to certify the signatures of an expert or a commission of experts. The question of what seal should be on the Expert’s Conclusion when an expert is performed by an employee of a non-expert (state or non-state) institution is not regulated by law? In practice, there are cases of certification of such Conclusions with the seal of the institution in which the specialist who conducted the study works, which cannot be recognized as an action based on the law. There is an opinion in the literature that in such cases the Expert opinion should be notarized.
In connection with the adoption of Law No. FZ-73 dated 31.05.01. Order of the Minister of Justice of the Russian Federation No. No. 20, the “Regulation on the certification of employees for the right to independently conduct a forensic examination in forensic institutions of the Ministry of Justice of the Russian Federation” was approved, the purpose of which (clause 1) is “to determine the level of professional preparedness for the production of forensic examinations”. Clause 3 of this Regulation stipulates to whom and under what conditions the right to independently conduct forensic examinations is assigned. Among the issues that an expert must know in order to assign him this right, in particular, there is a duty to know “modern methods and techniques for the production of expert examinations. in your area of ​​expertise and own them. The issue of issuing a Certificate is regulated in clause 20 of this Regulation. Clause 24 of the Regulations provides that this Certificate and the Card of the forensic expert make notes that the right of independent forensic examination was extended to the expert. In the form of the Certificate approved by the same order of the Ministry of Justice of the Russian Federation, there is a column “Valid for“ __ ”______”.

The absence in the criminal procedure law (Article 204 of the Code of Criminal Procedure of the Russian Federation) of the requirement that the Expert Opinion contain the No. and validity period of the Expert Certificate on the right to conduct an independent expert examination, apparently deprives the participants in the process of the right to know whether a proper and authorized specialist carried out the expert examination. Such a situation potentially contains the possibility of violating the legally protected rights of the suspect, the accused and the defendant, which often, as shown above, takes place in practice.
In addition, the absence in the law of numerous rules arising from the Methodological recommendations of the Ministry of Justice of the Russian Federation, the Ministry of Health of the Russian Federation, which are mandatory for experts in the course of expert examinations, seems to make it difficult for participants in the process to evaluate expert opinions and determine their suitability for giving them probative value. So, at present, the Instruction of the Ministry of Justice of the RSFSR dated 10.12.1974 No. "On the procedure for the production of forensic examinations in expert institutions of the Ministry of Justice of the RSFSR"; Methodological recommendations of the Ministry of Justice of the Russian Federation, approved by the Order of the Ministry of Justice of the Russian Federation No. 346 of December 20, 2002. "On the production of forensic examinations in state forensic institutions of the system of the Ministry of Justice of the Russian Federation."

These departmental regulations and the rules contained in them seem to play an important role in assessing the probative significance of expert opinions, their compliance with mandatory rules and methods in the production of examinations, on which the scientific validity of their conclusions, and ultimately the fate of persons on whose cases these examinations were carried out and formed the basis of the verdict.
So, for example, in the aforementioned criminal case Ch. accused under Articles 162, 131 and 132 of the Criminal Code of the Russian Federation in one of the acts of examinations (molecular genetic), the expert writes: “... by extraction in a 10% ammonia solution for 20 hours of numerous clippings on panties, jeans, sanitary napkins, tampons with the contents of the vagina, oral cavity and rectum of the victim R., centrifuged tubes and removed excess fluid, prepared smears from sediments on a glass slide, which, after evaporation of the fluid, were stained with a 1% solution of hydrochloric fuchsin and microscopically. The name of the methodology used and the source of this methodology are not given in the expert opinion.
In another criminal case on M.'s charge of selling drugs under Article 228.1 of the Criminal Code of the Russian Federation, the author of the express analysis, an employee of the laboratory of the ECC of the Central Internal Affairs Directorate, writes: "the study was carried out using the methods of OH and GLC with MSD."
Original! Guess yourself.

Meanwhile, in paragraph 42 of the mentioned Instruction of the Ministry of Justice dated 10.12.1974. stated: “Methods and techniques of research, as well as their results are set out clearly, clearly, accessible to people who do not have special knowledge, and in such detail that, if necessary, it was possible to verify the correctness of the expert's conclusions by repeating the study. SPECIAL TERMS SHOULD BE EXPLAINED.”
In addition, in accordance with clause 9, part 1, article 204 of the Criminal Procedure Code of the Russian Federation and article 25 of FZ-73 dated 31.05.01. the expert opinion should reflect “the content and results of the research indicating the methods used.
In accordance with clause 2.3 of the Methodological recommendations of the Ministry of Justice of the Russian Federation No. 346 dated 12/20/2002. in the introductory part of the conclusion, it is indicated, including:
- "…work experience on toy expert specialty, according to which a forensic examination is carried out;
- reference materials and regulatory documents (with a full indication of their details), which the expert was guided by when resolving the issues raised.
In accordance with clause 2.4 of these Guidelines, the research part of the conclusion indicates “the methods used, research methods, special software. In the case of using standard expert methods and expert research schemes set out in methodological publications, a link is made to them, and full details of their publication are indicated; in the case of the use of automated programs or software systems, data on the institution that developed them are given.
In paragraph 41 of the Instruction of the Ministry of Justice dated 10.12.1974. it is necessary to reflect the "circumstances of the case - in cases where they are essential for giving an opinion." In paragraph 42 of the same Instruction, in addition to describing the research process and its results, it is necessary to give “ scientific explanation of established facts. The same paragraph of the Instruction, in addition to the circumstances provided for methodological recommendations from 20.12.2002 to reflect in the research part of the conclusion on the methods used, it also provides for the need to reflect:
- “methods, techniques of expert research; the number, sequence and conditions for performing expert experiments, the number of comparative samples obtained in this case and the conditions for their receipt”;
- substantiation of the accepted values ​​of technical quantities in the production of calculations;
- conditions for the use of scientific and technical means used in the study, technical parameters adopted in the calculations;
- data on literary sources or reference documents used in the research (author or publisher name, title of work or normative document, place and year of publication, pages).
It is also important to regulate these departmental regulations term for the examination. This issue is not regulated in the current legislation. Paragraph 29 of the Instruction of the Ministry of Justice dated 10.12.1974. The term for the examination is set “within 10 days” for materials “with a small number of objects or not requiring complex research” and “within 20 days” for materials “with a large number of objects or requiring complex research”. Paragraph 30 of this Instruction establishes the procedure under which, if the examination cannot be completed within 20 days, the expert institution notifies the body that appointed the examination and, in agreement with it, sets an additional period. Preliminary familiarization with the materials, according to this clause, cannot exceed 5 days. The next, paragraph 31 of the Instructions establishes the procedure for calculating the time limits, which starts from the day following the day the materials are received by the expert institution, until the day the conclusion (notification of the impossibility of giving a conclusion) is sent to the body that appointed the examination. If the expiry date of the expert examination falls on a non-working day, the expiration date shall be the following business day. The term for the production of an expert examination is suspended for the period of waiting for the satisfaction or refusal to satisfy the expert's request for the provision of additional materials. Suspension of the term for the examination occurs in accordance with clause 21 of the Instruction and in case of incorrect execution by the body that appointed the examination of the materials sent for examination.
As you know, in practice, more and more often one has to deal with the facts of an uncritical attitude to the conclusions of experts. Meanwhile, in the current resolution of the Plenum of the Supreme Court of the USSR No. 1 of March 16, 1971. “On forensic examination in criminal cases”, paragraph 14 expressly states: “To draw the attention of the courts to the need to eliminate cases of uncritical attitude to the expert's opinion. By virtue of Article 17 of the Fundamentals of Criminal Proceedings of the USSR and the Union Republics (now corresponding to Part 2 of Article 17 of the Code of Criminal Procedure of the Russian Federation - A.R.), the expert’s opinion does not have a predetermined force, does not have an advantage over other evidence and, like all other evidence , is subject to assessment based on the internal conviction of the judges, based on a comprehensive, complete and objective consideration of all the circumstances of the case in their totality.

The same paragraph of the judgment contains important guidance that the probable conclusion of the expert cannot be the basis of the verdict.” Meanwhile, practitioners know that judicial practice is replete with facts, firstly, the number of probable expert opinions prevails over categorical ones: “may have ..”, “it is not excluded”, etc., secondly, courts give such probable the conclusions of experts of probative value and, contrary to the indicated guidance explanations, their rationale for convictions.
In the current conditions, it seems that the defense counsel, in addition to knowledge of the current legislation in the field of expert activity, also needs to know the current rules of production various kinds examinations, which are regulated by departmental regulations and with the help of which it is possible to check and evaluate the observance by experts in the production of one or another type of examination of the procedure and methodology for their conduct, on which the scientific validity of the conclusions and their evidentiary significance depend.
For example, everyone knows that in recent years, more and more often in the practice of legal proceedings, one has to deal with a type of expertise that is gaining momentum - molecular genetics.
Being the most modern and most evidential method for demonstrative identification of a person (called even genetic fingerprinting) it is also characterized by a high degree of complexity. In this regard, as a type of medical activity, genetic examination subject to mandatory licensing Central Commission of the Ministry of Health of Russia for licensing medical activities. Order of the Ministry of Health of Russia dated April 24, 2003 No. No. 161, it is determined that molecular genetic examination can be carried out in specialized laboratories of the Bureau of Forensic Medical Examination, licensed for this type of activity. In the mandatory annex to such a license, in the list of "Permitted types, methods and works", it must be indicated: "forensic medical examination of material evidence and research of biological objects - genetic, code 06.020.4" Nomenclature of works and services for the provision of appropriate medical care subject to licensing ”(Order of the Ministry of Health of Russia dated July 26, 2002 No. 238).
A selective check conducted by the Russian Center for Forensic Medical Examination of the Ministry of Health of Russia, according to its information letter, revealed gross errors made in the production of molecular genetic examinations in a number of territorial forensic medical institutions. If we take into account that the price of each such mistake is equal (in criminal cases) to long terms of depriving a person of liberty, then the fate of the client largely depends on the degree of readiness of a lawyer to adequately evaluate molecular genetic examinations. In the medical literature, the most common causes of errors in the production of molecular genetic examinations are noted.
In existing methods possible causes errors in molecular genetic studies, incl. associated with contaminants leading to incorrect determination of genomic profiles and insufficient initial amount of matrix DNA indicated "false genotyping".

False genotyping
Specialists will distinguish between two reasons for the false result of the similarity of one genomic profile to another. First, the presence of foreign genetic material in the compared DNA preparations, which can mimic both the coincidence and the difference in their genomic profiles. Secondly, the same effect can manifest itself as a result of incorrect genotyping, in particular, falsely determined homo- or heterozygy of the analyzed objects. This is due to artifacts of the polymerase chain reaction that occur under the influence of non-optimal conditions for its implementation, among which experts indicate various reasons, including:
- insufficiency of the source material;
- poor quality of the drug;
- unsuccessful technical parameters of the device used for DNA amplification;
- inadequately selected operating mode (annealing at a lower temperature than it should be) and others.
According to experts in this field of knowledge, "The technology of genetic examination is a tool with which you can establish the truth, but this happens only when knowledgeable people use this tool."
At a minimum, the reasons for possible errors in molecular genetic examinations, noted above by the experts themselves, are false genotyping, which suggests the need for checks:
Was the source material sufficient for the examination?
Is there any information about the quality of the drugs used?
- do the technical parameters of the used devices meet the requirements of GOST?
- Was the operating temperature selected correctly?
and other data provided for by the Methodology for conducting this type of examination.

As you know, numerous rules for the production of various examinations cannot be provided for in the law itself. Nevertheless, it seems that a successful defense in cases in which certain examinations were carried out or need to be carried out objectively requires the defender to know these rules that are mandatory for experts, both in order to be able to exercise the rights provided for in Art. 198 of the Code of Criminal Procedure of the Russian Federation competently put before the examination appropriate questions in the case, as well as verification of compliance by experts with their duties and Methodological recommendations in the production of examinations. This knowledge is often necessary for the defense to file motions to reformulate the questions posed to the examination by the investigating body (or the court) or to exclude questions posed by them that do not fall within the competence of experts (for example, legal issues or questions from other areas of knowledge).

Order of the Ministry of Health of the Russian Federation No. 161 dated April 24, 2003 No. approved the Instruction on the organization and production of expert studies in the Bureau of Forensic Medical Examination, consisting of 10 sections and regulating the conduct of numerous important expert studies. It is not possible to describe and analyze these rules in detail from the point of view of developing techniques and ways of working with them within the framework of this article. I will dwell only on a number of opinions of experts in criminal cases that are often encountered in practice.
Thus, section U1 of the Instruction is devoted to Forensic biological expert research.
P.6.2.2 “... the objects are spent in such a way as to ensure the completeness of the study, as well as the possibility of additional or repeated actions with them. ...the destruction of traces or changing their configuration must have the permission of the investigator.”
This paragraph of the Instruction, to a certain extent, meets the requirements of Articles 10, 14, 16 of the Law of the Russian Federation No. 73-FZ of 31.05.01. on the safety of research objects and the prohibition on the destruction of research objects by experts or a significant change in their properties without the permission of the body or person who appointed the examination at the same time causes some confusion. Why do these norms bind the prohibition of destruction or significant modification of objects of research only with the consent of the body or person who ordered the examination?
Where is the account of the right of the accused (suspected) to defense? Where is the consideration of the procedural equality of the parties to the prosecution and defense in criminal proceedings?

Practice is replete with facts of non-coordinated, and often, deliberate destruction, both by investigating authorities and, in agreement with them, by experts of objects of study in order to exclude the possibility of rechecking the validity of the expert opinion, to the detriment of the legitimate interests of the involved to the criminal responsibility of the person.
So, in the above-mentioned murder case, the investigator, who acted with a single accusatory bias, committed dozens of gross violations of the requirements of the Code of Criminal Procedure of the Russian Federation issued a decision on the destruction of material evidence - a towel soaked in blood - with reference to the putrefactive processes that had begun and the unsuitability of this object for expert research. He did this without involving a specialist in this field. Meanwhile, the investigator is not a specialist competent to determine whether or not these biological objects are suitable for their expert research, and practice indicates the possibility of research and discovery of evidence important for the case, incl. and in putrid objects. Thus, the method for determining group affiliation in putrefactive research objects is described in the manual for forensic doctors by Professor L. O. Barsegyants. "Forensic examination of material evidence (blood, secretions, hair)", M., Medicine publishing house, 1999, pp. 79-82.
In another case mentioned above, on the charge of M. under Article 228.1 of the Criminal Code of the Russian Federation, the expert, with the consent of the investigator, used up a completely powdered substance, which he recognized as the narcotic drug "Amphetamine", while according to the materials of the case, this substance, when sent to examination was not recognized as material evidence in the case, and after the examination, the investigator issued a decision on the inclusion of this evidence in the case file. spent substances, which essentially means the inclusion of “air” in the case file. At the same time, the substance sent for examination differed in color from the substance received by the “applicant”, and it is no longer possible to double-check the validity of the expert's conclusion in the manner prescribed by law.

The list of such examples can be continued, and practicing lawyers, it seems, often come across this, which has already become fashionable, the practice of destroying (completely spending) objects of research, both agreed with the persons who appointed the examination, and without it.
It seems that the legislative leaving this important issue only to the discretion of the prosecution, without taking into account the opinion of the person prosecuted and his defense counsel, is at least unfair.
Paragraph 6.2.3 of the said Instruction establishes the rule according to which "liquid blood and other perishable materials are examined no later than the next day after they arrive at the department."
It seems that this rule involves in the work of a lawyer, firstly, checking what is meant by the concept of "other perishable materials"?; secondly, whether liquid blood and/or “other perishable materials” were delivered for examination within the timeframe acceptable for their examination no later than the next day after their arrival at the department?; did and how did the violation of these deadlines affect the results of the study?; where and at what temperature regime Were these objects stored prior to their examination?
Paragraph 6.2.5 of the Instructions requires that before the everyone research the suitability of the used reagents and reagents was checked (their specificity and activity), which seems to involve checking by the defense counsel when reading the expert opinion reflection of this in the expert opinion.
The next important paragraph of the Instruction - 6.2.7 regulates the examination and description of material evidence by an expert and requires the indication of “full characterization of traces of biological origin. In doing so, the basic principle allowing subsequently at any stage of the investigation or trial identify these objects, i.e. indicate in detail the texture, main dimensions, distinctive details, color, wear, damage, pollution, etc.”
In this regard, it seems that the defender is obliged to check the full reflection of all the specified data for each biological object and their immutability and the possibility of identification at all stages of the investigation and trial and all their subsequent studies (with additional, repeated, complex or commission examinations).

I consider it useful to add that after the defenders established the inconsistency of the examinations and materials that served as the basis for the expert opinions and initiation during the judicial investigation of the relevant petitions for the recognition of the indicated “evidence” as inadmissible, the conduct of additional, repeated, commission or complex examinations, it became “fashionable” to involve the court “at the request of the prosecution” as “witnesses” of the employees of the investigating body who investigated the case and committed these violations, in order to give the appearance of the legality of the illegal procedural actions. Unfortunately, the courts, referring to the testimony of these "witnesses" in court, leave unnoticed the procedural violations committed and attach probative value to such procedural documents. Meanwhile, the current The Criminal Procedure Code of the Russian Federation does not provide elimination of procedural violations of investigators and prosecutors by interrogating them as "witnesses" in the cases they investigated.

Thus, in the aforementioned murder case, in connection with the discovery of forgery of physical evidence: fingerprints copied onto a light fingerprint film, which was not used according to the protocol for examining the scene of the incident, and the discovery of a difference in the sizes of the objects of study according to the protocol for examining the scene of the incident and according to the expert’s conclusion, in as “witnesses” the investigator in the case and the specialist of the ECC of the Central Internal Affairs Directorate, who participated with him during the inspection of the scene of the incident, were invited to the court, who “explained” these contradictions by the “many hours” of examining the scene of the incident and the associated “fatigue”; making measurements with gloves on, “what could explain measurement errors”, etc.
Paragraph 6.2.8 of the Instructions imposes special requirements on the description of "traces of biological origin". " It is mandatory to note: the localization of the trace, its color, shape, contours, degree of impregnation, compaction, dimensions, features.
These data, it seems, can be very important for the defender's assessment of the validity of the expert's opinion, compliance with the latest law and Instructions requirements for the expert's opinion, and, finally, the legitimacy of the examination in general. Unfortunately, in practice, little attention is paid to the obligation of the expert to draw up a reasoned written opinion about the inability to conclude...., if the questions raised go beyond the expert's special knowledge, the objects of study and case materials unsuitable or insufficient for conducting research and giving an opinion, and the expert was refused to supplement them; The current level of development of science does not allow answering the questions posed.

However, there are few such grounds in practice. For example, the requirements of the specified Instruction on the reflection of "the texture on which the trace was found, its size, the degree of impregnation" are directly related to the question: how much biological substance is this trail? Associated with it is important question About, whether the quantity of the detected substance is sufficient to produce the required complete studies or studies with it and save its part for subsequent similar and additional studies to verify the scientific validity of the conclusions and conclusions made and thereby fulfill the requirements of the Law of the Russian Federation No. FZ-73 of 31.05.01?

It seems that for each Research Method there is a “own” required amount of the biological substance to be studied in order to fulfill the requirements of the law and the Guidelines for this study. If the defender is familiar with the specified Guidelines and, in this regard, knows that, for example, for the full detection of traces of sperm according to the available methods, the minimum required amount should be 0.1 ml, and the volume of biological substance found on the non-impregnated texture is significantly smaller amount, then what kind of legitimate and full-fledged expert research can we talk about, if the expert in these cases, in accordance with the requirements of Article 16 of the Federal Law-73 of 31.05.01. must submit a reasoned written waiver. from giving an opinion with the motives for such a decision, and not to give, in favor of the investigating authorities, a conclusion “on the discovery” of traces of sperm on the object under study!
The requirements of the specified paragraph of the Instruction on the reflection of the "localization, color, shape, contours" of a biological object may be useful for clarifying the statute of limitations for this trace, the mechanism of its formation, and other issues important for protection.
Clause 6.3.4.2. The instructions provide for the possibility of establishing a blood group (in the absence of the person of interest) based on the results of the study sweat from the wearable things of this person.
Paragraph 6.3.7 of the Instructions provides for the possibility of determining by a blood test gender and regional origin of blood by special methods:
- belonging of blood to a pregnant woman with the help of gravidadiagnosticum;
- differentiation of peripheral and menstrual blood by electrophoretic and cytological methods.

Unfortunately, in practice, defenders' ignorance or insufficient knowledge of these issues, the lack of necessary experience, make it difficult to "struggle" with such "expert opinions", which leads to certain consequences for the protected person. Of course, it is impossible to demand from a defender that he simultaneously be a specialist in numerous branches of knowledge in the field of which examinations are carried out. But, it seems, the defender must have knowledge of the mechanism for dealing with such examinations. In addition, as is known, the current Code of Criminal Procedure of the Russian Federation allows the defense counsel, if necessary, to apply on a contractual basis to alternative experts (specialists) of the relevant branches of knowledge, which can help the defense counsel both in adequate understanding of the expert’s conclusion, in assessing its scientific validity, and in refuting unreasonable expert opinions. conclusions. It seems that the possibility of inviting an alternative expert (specialist) to the court on his own initiative to interrogate him at the request of the defense is also effective.

In addition, in connection with the recently published 10.03.2007. Administrative regulation of the Federal Service for Supervision of Health and Social Development for the performance of state functions to control the procedure for the production of medical examination, approved. Order of the Ministry of Health of the Russian Federation No. 900 dated December 31, 2006 No. and registered in the Ministry of Justice of the Russian Federation on February 19, 2007. under No. 8959, seems to be an effective and promising direction of the “fight” against scientifically unfounded and procedurally flawed expert opinions. already at the stage of preliminary investigation of the case, after familiarization with such conclusions, appealing them to the body provided for by the specified regulations - the Federal Service for Surveillance in Healthcare. The right to appeal this kind of expertise is provided for in Article 6 of the Federal Law -73 dated 31.05.2001.

Knowledge of the capabilities of modern expert research and the rules for their conduct will largely help the defender to take this into account when building a line of defense and adequately assessing expert opinions.
The result of this painstaking and, of course, complex work of the defender in an unequal struggle with such conclusions of "experts" may be a feeling of deep satisfaction with the fulfilled duty, and possibly saved human destinies.

Lawyer of the Lawyer's Office No. 63
Inter-Republican Bar Association R.G. Ambartsumov

Zarovneva G.S.,Sorochanova A.O.

ASSESSMENT OF THE OPINION OF THE EXPERT IN CRIMINAL CASES

Far Eastern Federal University

Expert opinion - the content of the study and conclusions presented in writing on the issues posed to the expert by the person conducting the proceedings in the criminal case, or by the parties (part 1 of article 80 of the Code of Criminal Procedure of the Russian Federation).

A forensic examination is appointed in cases where special knowledge is required to establish the circumstances relevant to the case. Special knowledge is knowledge that goes beyond general education, everyday experience and requires special training and professional skills. Special knowledge can relate to any sphere of human activity: science, technology, art, craft.

The expert opinion, unlike testimony, is given in writing, it has no advantages over other evidence and is subject to mandatory verification and evaluation according to general rules. No matter what exact data an expert conclusion is based on, it cannot be considered binding on the investigation or the court.

The process of evaluating an expert opinion consists of several successive stages. Verification of compliance with the requirements of the law when appointing an examination, which consists in finding out the answer to the following questions.

1. Is the expert competent in solving the tasks assigned to him and has he gone beyond the limits of his competence? When conducting an examination by a private expert, his choice is made by the investigator or the court, the issue of the competence of the forensic expert is decided upon his appointment.

2. Has the examination been carried out by a person subject to challenge on the grounds listed in the procedural law?

3. Are the rights of participants in the process observed when appointing and conducting an examination?

4. Is the procedural order violated when obtaining samples for comparative research and fixing in the corresponding protocol?

5. Is the procedural form of the expert's opinion observed and are all the details required for it available? The absence of any part of the expert opinion makes it difficult or impossible to evaluate the opinion.

At the same time, one cannot ignore the specifics of the expert's opinion in comparison with other types of evidence, the complexity of its assessment for persons who do not have the appropriate special knowledge. Evaluation of the expert opinion includes, first of all, the establishment of its admissibility as evidence. A necessary condition for the admissibility of an expert opinion is the observance of the procedural procedure for appointing and conducting an examination. It must be borne in mind that only objects that are properly procedurally formalized can be subjected to expert research. In case of violations that entail their inadmissibility, the expert's opinion also loses probative value. And finally, the investigator and the court must check the correctness of the execution of the expert opinion, the presence of all the necessary details in it.

When evaluating the relevance of an expert's conclusion, one must keep in mind that it depends on the relevance of the objects that were examined by the expert. If their relevance is not confirmed, then automatically loses this property and the expert's opinion. The most difficult component of the assessment by the investigator, the court of the expert's opinion is the determination of its reliability (correctness, validity). Such an assessment includes determining the reliability of the methodology used by the expert, the sufficiency of the material presented to the expert and the correctness of the initial data, the completeness of the examination conducted by the expert (for example, were all three cavities opened during the investigation of the corpse), etc.

A necessary element (and method) for evaluating the expert's opinion is to compare it with other materials of the case. It happens that the conclusion in its content does not cause any complaints, but contradicts other evidence available in the case. In such cases, it is subject to particularly careful scrutiny.

The problem of the admissibility of evidence became relevant after the introduction of the institution of inadmissible evidence (Article 75) in the Code of Criminal Procedure of the Russian Federation, which provides that evidence obtained in violation of the requirements of the criminal procedure law is inadmissible. In this regard, the question arises: should all violations of the law in the course of a forensic examination entail the inadmissibility of evidence, deprivation of its legal force?

Some proceduralists propose to consider evidence inadmissible in case of any violation of the law. M.L. Yakub, on the contrary, believes that the evidence cannot be left without consideration on the merits, rejecting it for inadmissibility. Scientists O.V. Khimichev and R.V. Danilova subdivide violations into those that entail the inadmissibility of evidence in any case (criminal violations, other significant violations of the criminal procedure law, entailing irremovable doubts about the reliability of the actual data), and minor violations. The latter type of violations of the law does not determine the recognition of evidence as poor quality, since such violations do not create irremovable doubts about the reliability of the actual data and do not infringe on the rights of participants in the process.

According to Professor V.M. Savitsky, any violations of the law when collecting evidence should entail the recognition of their insignificance, otherwise the classification of violations into implemented and insignificant ones will indirectly bless minor violations of the law, a hierarchy of procedural norms will be required according to their degree of importance, and the erosion of legality in criminal proceedings will deepen.

N.M. Kipnis also considers it impossible to develop criteria for determining the materiality of violations of the procedural form of evidence, recognizing the possibility of its replenishment in case of eliminated violations.

In our opinion, the position that recognizes the possibility of significant violations of the law when collecting evidence is more preferable. So, both in science and in the criminal procedure law, in relation to the grounds for the annulment of sentences, the concept of the materiality of violations of the criminal procedure law (Article 381 of the Code of Criminal Procedure of the Russian Federation) is known, the nature of which does not differ from procedural violations in the collection and verification of evidence. The absence of the term “essential” in this article does not make it impossible to consider those mentioned in Part 1 of Art. 381 Code of Criminal Procedure of the Russian Federation such violations. The indicated name of the violations only distinguishes them from the general range of procedural violations, since they affect or may affect the issuance of a lawful, justified or fair sentence.

If the law provides for means and methods by which it is possible to neutralize the consequences of violating its individual provisions, proving that they did not affect the observance of the principles of criminal proceedings, then with the successful application of such means and methods, it can no longer be said that such evidence was used to prove in violation of law. Infringements that can be refuted should, in our opinion, be considered removable, or refutable. On the contrary, if it is established that the distortion of the procedure has led to real damage to the principles of adversarial proceedings, its results should in any case be considered legally null and void, and the committed violations irremediable.

The recognition of some procedural violations as insignificant does not mean that there is no need to suppress and prevent them. In addition to the sanctions of nullity, minor criminal procedural offenses when collecting evidence may entail other legal measures: disciplinary, as well as the removal of the investigator from the proceedings, the issuance of a private court ruling.

Let us consider violations of the requirements of the criminal procedure law during a forensic examination based on their materiality and the possibility of being eliminated during the trial. It seems that, depending on the procedural consequences, violations can be divided into three relatively independent groups. Violations of the first group do not entail the exclusion of the expert opinion from the proving process, since they do not raise doubts about the truth of the conclusion contained in this evidence.

Violations of the second group do not entail, but may entail the recognition of the conclusion of a forensic examination as inadmissible evidence, provided that additional judicial actions cannot eliminate doubts about the legality of its conduct.

Violations of the third group entail the unconditional exclusion of the expert's opinion from the process of proving in connection with significant violations of the criminal procedure law in the appointment and conduct of a forensic examination.

It seems that the assessment of violations and their assignment to one category or another largely depends on such a subjective-psychological category as the discretion of judges.

As the main criteria for the admissibility of an expert opinion as evidence, a set of dialectically interconnected conditions should be recognized, in particular, if: the procedural procedure for appointing and conducting an examination is observed; the examination is appointed and carried out by authorized persons; the objects, items, comparative samples submitted to the expert's disposal were confiscated in compliance with the criminal procedure law; when appointing, conducting and attaching the data of the examination to the case file, the rights of the victim, suspect, accused, defense counsel are not infringed; the expert is warned about criminal liability for giving a knowingly false opinion; the examination report contains all the necessary details, scientific substantiation of the conclusions that do not go beyond the competence of the experts; the content of the descriptive part and the conclusions contained in it correspond to the conclusions of the final part of the examination.

Based on these components, it is necessary to determine the criteria for the inadmissibility of an expert's opinion as evidence in a criminal case, clearly distinguishing which particular group of procedural violations or omissions we are dealing with in each specific case.

Violations of the first group are omissions associated with a certain negligence, a superficial approach to the impeccable observance of the procedure for the procedural execution of documents during the appointment and conduct of an examination, which do not affect its objective content.

The court and the parties in this situation practically do not have the slightest doubt about the legality of the expert's opinion or about the proper procedural competence of the subject of proof, who received and fixed it in the case file. Omissions, as a rule, relate to the exact observance of the procedural form of registration of this evidence. Due to their insignificance and apparent insignificance, they objectively cannot affect the actual content of the evidentiary material and its reliability. Petitions and statements to exclude such evidence from the procedurally interested parties, as a rule, are declared “just in case” and, if they are justified by the court, for the most part are not disputed by the parties and are not re-submitted.

Such omissions in the procedure for appointing and conducting an examination include: failure to notify the head of the expert institution of the investigator about which of the experts was entrusted with conducting the examination (part 2 of article 199 of the Criminal Procedure Code of the Russian Federation); the absence in the expert opinion of the time and place of the forensic examination (part 1 of article 204 of the Code of Criminal Procedure of the Russian Federation); the absence of the signature of the investigator in the decision on the appointment of a forensic examination or a clearly erroneous date of its issuance; the absence in the heading of the resolution of the name of the forensic examination.

A somewhat different situation develops when assessing violations of the second group, which in themselves do not entail, but under certain conditions may lead to the exclusion of the expert's conclusion from the proving process due to its inadmissibility.

It is here that the fate of evidence depends most of all on the discretion of the judge, so these procedural violations and their procedural consequences cause the greatest range of positions and opinions.

It seems that here there can not be the slightest doubt about the legitimacy of the expert's conclusion and the correctness of his conclusions. The essence of the violations that caused the statements of the parties or the initiative of the court to recognize the conclusion as null and void, entirely concerns the procedural requirements established by law when appointing and conducting an examination. Thus, one of the most common violations that can be attributed to this group is the non-compliance by the subjects of proof with the requirements of Article 198 of the Code of Criminal Procedure of the Russian Federation, namely the violation of the right to familiarize the suspect and the accused with the decision to appoint a forensic examination before it begins. Practice shows that very often investigators acquaint suspects and defendants, as well as their defense lawyers, with the decision to appoint an expert examination simultaneously with the expert’s conclusion, while violating their right to challenge the expert, raise additional questions and other rights listed in this norm. It is this issue that is debatable both in the procedural literature and among practitioners. According to Art. 198 of the Code of Criminal Procedure of the Russian Federation, a suspect, an accused, a defense counsel, when appointing and conducting a forensic examination, have the right to familiarize themselves with the decision on the appointment of a forensic examination, challenge the expert, and also petition for the production of a forensic examination in another or in a specific expert institution, to involve as experts the persons indicated by them , on the introduction of additional questions to the expert in the decision on the appointment of a forensic examination. Article 195 of the Criminal Procedure Code of the Russian Federation directly establishes the duty of the investigator who has appointed a forensic examination in a criminal case to ensure that the suspected, the accused, the defender of these rights can exercise their rights. For these purposes, part three of this article establishes that the investigator acquaints them with the decision on the appointment of a forensic examination and explains to them the rights provided for by Article 198 of the Criminal Procedure Code of the Russian Federation, about which a protocol is drawn up, signed by the investigator and persons who are familiar with the decision.

The specified procedural action, within the meaning of the above norms, considered in a systemic connection, must be significant before the start of the examination - otherwise the named participants in the process are deprived of the opportunity to exercise the rights associated with its appointment and arising from the constitutional principle of competitiveness and equality of the parties, enshrined in Art. 198 Code of Criminal Procedure of the Russian Federation. This requirement of Part 3 of Article 195 of the Code of Criminal Procedure of the Russian Federation applies to the procedure for appointing any forensic examinations, is imperative in nature and is mandatory for execution by the investigator at the pre-trial stage of legal proceedings in all cases.

Thus, it seems that when resolving the issue of the admissibility of the expert's opinion in case of a violation of the requirements of Art. 195 and 198 of the Code of Criminal Procedure of the Russian Federation, when appointing an expert examination, the judges should find out from the defendant whether, when he got acquainted with the decision on the appointment of an expert examination, carried out after the examination, he had petitions to challenge the expert, to raise additional questions and other actions aimed at exercising his rights . At the same time, it is necessary to compare the data obtained with the protocol of familiarization with the decision on the appointment of an examination, establishing whether during the investigation he had comments, petitions and additions set forth in the corresponding column of the protocol.

The second group of violations also includes violations committed by experts when drawing up an opinion. Practice shows that sometimes forensic medical examinations “sin” with this.

The third group of violations, as court practice shows, does not require a laborious procedure for checking and assessing the materiality of violations of the criminal procedure law and their impact on the expert's opinion. The legislator, as it were, a priori recognizes that the presence of at least one of them should unconditionally lead to the recognition of the expert's conclusion as inadmissible evidence. These include cases where: the examination was appointed by an improper subject of proof; conclusion given by an expert subject to challenge on the grounds specified in Art. 70 Code of Criminal Procedure of the Russian Federation; there is no indication in the conclusion that the expert was warned of liability under Art. 307 Code of Criminal Procedure of the Russian Federation; the objects submitted for examination were obtained with gross violations of the criminal procedure law.

A forensic examination may be appointed only after the execution of investigative actions certifying the fact of the appearance of objects of research, as well as samples for comparative research. Violation of these requirements leads to the recognition of inadmissible evidence received, including expert opinions.

Literature:

1. Gritsaenko P.P. On the issue of consideration of the "Conclusions of a specialist" in court // Judicial Bulletin. 2007. No. 3.
2. Criminal procedure: a textbook for legal higher educational institutions. / Ed. IN AND. Radchenko. - M .: "Legal House" Yustitsinform ", 2003.
3. Mukhin II, Objective truth and some issues of evaluating judicial evidence in the administration of justice. - L., 1971.
4. Yakub M.L. The problem of evaluating evidence in the Soviet criminal process // Bulletin of Moscow State University. 1974. No. 6.
5. Himicheva O.V., Danilova R.V. Admissibility of Evidence in Criminal Proceedings (Based on Materials of Criminal Cases on Crimes Committed by Organized Groups). - M., 1998.
6. Savitsky V.M. Criminal trial in Russia on a new round of democratization // Legal world. 2009. - No. 6.
7. Kipnis N.M. Admissibility of evidence in criminal proceedings. - M., 1995.
8. Scientific and practical commentary on the Code of Criminal Procedure of the Russian Federation / Ed. V.M. Lebedeva, V.P. Bozheva. – M.: Standard, 2009.
9. Selina E.V. Attraction of special knowledge in the criminal process. - M .: LLC "Publishing house" Yurlitinform ", 2007.

10. Vladimirov L.E. The doctrine of criminal evidence. - Tula: Autograph, 2000.

11. Orlov Yu.K. Fundamentals of the theory of evidence in criminal proceedings. M.: Prospekt, 2008.

The investigation of a criminal offense involves not only the conduct of investigative actions and experiments, on the basis of which investigators and interrogators make subjective value judgments, but also the involvement of independent objective experts.

Being specialists of a narrow scientific profile, experts conduct various checks to establish certain causes of circumstances that are directly related to the essence of the event under investigation.

The types of examinations in the criminal process are represented by a very wide list, in which each of them has its own key features.

What is an examination, who can become an expert, and what types of forensic examinations are most often found in practice, we will talk further.

Forensic examination is a type of criminal procedure action carried out by independent experts at the request of the participants in the process, as a result of which an expert opinion is issued.

The expert opinion must contain answers to the questions posed to the expert that meet the objectives of the examination.

Expertise is a powerful evidentiary weapon in a criminal case. Most often, the accusation is based precisely on the conclusion of an expert.

Expertise, according to Art. 196 of the Code of Criminal Procedure of the Russian Federation, can be carried out both on a mandatory basis and on a voluntary basis at the initiative of the investigating authorities.

Mandatory features of an examination include:

Forensic examination can be carried out even before a criminal case is initiated.

The appointment of a forensic examination in criminal proceedings must be justified and reasoned. It is carried out on the basis of a decision issued by the investigator.

The production of an examination in a criminal case assumes that the investigator must introduce it to the participants in the process, who put their signatures in a special protocol.

The Criminal Procedure Code of the Russian Federation states that the examination should be carried out by state forensic experts or other persons engaged in expert activities and possessing special knowledge.

There are two main criteria that must be met in order to appoint an expert in a case for a particular person:

• The expert should not be interested in the outcome of the case and be objective in relation to the subject of the study;
• An expert must be competent in a certain area of ​​scientific knowledge.

You can't be an expert on everything. Experts, as a rule, conduct a narrowly focused activity, but at the same time they have very broad knowledge in it.

Also Art. 70 of the Code of Criminal Procedure of the Russian Federation establishes the reasons according to which an expert may be removed from participation in a case.

Withdrawal is allowed in the following cases:

• The expert has family relations with one of the participants in the process;
• The expert is incompetent;
• The presence of the current or past official dependence of the expert on the parties to the case;
• The expert has already participated in this case in any position, except for the expert.

In one case, an expert may conduct examinations several times and give explanations on them in court proceedings.

The number of examinations in the criminal process is quite impressive. The appearance of each new species is based on individual classification features.

The main ones are:

With the development of technology and new areas of knowledge, new types of forensic examinations are emerging. At the same time, their long-established classification is still valid.

Forensic examinations allow the details to restore evidence of a crime and evidence of guilt.

Criminalistics is a separate field of knowledge in the theory of criminal law. Even in universities there is such a special specialization as a forensic specialist.

Forensic examinations also have their own varieties:

Forensic examination can independently confirm the guilt of a particular person in a crime at a time when other examinations only help to collect evidence.

Examinations in the field of economic knowledge are carried out in civil, arbitration cases, as well as in criminal economic crimes.

They, in turn, have their own varieties:

A very common expertise in criminal cases, especially in those who are victims of a crime. Including any nature of damage also requires this examination.

There are several types of it:

Not only the motives of the participants in the criminal case are important for the investigation. Materials and physical evidence that have received certain changes in the process of committing a crime are also of great importance for the investigation.

Material science examinations are:

Forensic-linguistic and forensic-normative examinations

An expert linguist is involved in the investigation of a case when his value judgment about the nature of a particular statement is required.

Any professor of philology can be invited as an expert linguist.

Both oral and written statements, including those published on the Internet, are subject to evaluation.

Regulatory examinations check the compliance of various documents with the standards and rules for their maintenance and filling.

Regulatory expertise can reveal traces of a corruption component in economic documents and contracts.

In addition to the above, there are many other types of examinations in the framework of a criminal investigation. Their use is based on the peculiarities of the criminal case itself, the appropriateness of their application to establish the circumstances of the case.

The following types of forensic examinations are often encountered:

This is an incomplete list of forensic examinations; it is updated annually with new types of inspections.

When the court session decides on the possibility of applying an examination, all participants in the process speak out about such an action.

Any participant in a criminal case may not give consent to an expert examination.

Examination will not be carried out in the following situations:

• The participant, who must participate in the examination and without which it is impossible to establish the reliability of the data, refuses such participation;
• The court refuses to satisfy the request for an expert examination;
• The expert refuses to perform actions that contribute to the confirmation or refutation of one of the parties.

The court must justify its refusal to grant the petition. Otherwise, his decision may be appealed.

Forensic examination is an objective investigative measure, which, with the assistance of a competent and uninterested expert, helps to establish reliably the circumstances of a criminal case.

In practice, there are such a large number of types of examinations that for each complex and special criminal case in this list there is always a suitable objective verification.

Expert opinion - the content of the study and conclusions presented in writing on the issues posed to the expert by the person conducting the proceedings in the criminal case, or by the parties (part 1 of article 80 of the Code of Criminal Procedure of the Russian Federation).

A forensic examination is appointed in cases where special knowledge is required to establish the circumstances relevant to the case. Special knowledge is knowledge that goes beyond general education, everyday experience and requires special training and professional skills. Special knowledge can relate to any sphere of human activity: science, technology, art, craft.

The expert opinion, unlike testimony, is given in writing, it has no advantages over other evidence and is subject to mandatory verification and evaluation according to general rules. No matter what exact data an expert conclusion is based on, it cannot be considered binding on the investigation or the court.

The process of evaluating an expert opinion consists of several successive stages. Verification of compliance with the requirements of the law when appointing an examination, which consists in finding out the answer to the following questions.

• 1. Is the expert competent in solving the tasks assigned to him and has he gone beyond the limits of his competence? When conducting an examination by a private expert, his choice is made by the investigator or the court, the issue of the competence of the forensic expert is decided upon his appointment.
• 2. Has the examination been carried out by a person subject to challenge on the grounds listed in the procedural law?
• 3. Are the rights of participants in the process observed when appointing and conducting an expert examination?
• 4. Has the procedural order been violated when obtaining samples for a comparative study and fixing them in the corresponding protocol?
• 5. Is the procedural form of the expert's opinion observed and are all the details required for it available? The absence of any part of the expert opinion makes it difficult or impossible to evaluate the opinion.

At the same time, one cannot ignore the specifics of the expert's opinion in comparison with other types of evidence, the complexity of its assessment for persons who do not have the appropriate special knowledge. Evaluation of the expert opinion includes, first of all, the establishment of its admissibility as evidence. A necessary condition for the admissibility of an expert opinion is the observance of the procedural procedure for appointing and conducting an examination. It must be borne in mind that only objects that are properly procedurally formalized can be subjected to expert research. In case of violations that entail their inadmissibility, the expert's opinion also loses probative value. And finally, the investigator and the court must check the correctness of the execution of the expert opinion, the presence of all the necessary details in it.

A necessary element (and method) for evaluating the expert's opinion is to compare it with other materials of the case. It happens that the conclusion in its content does not cause any complaints, but contradicts other evidence available in the case. In such cases, it is subject to particularly careful scrutiny.

As the main criteria for the admissibility of an expert opinion as evidence, a set of dialectically interconnected conditions should be recognized, in particular, if: the procedural procedure for appointing and conducting an examination is observed; the examination is appointed and carried out by authorized persons; the objects, items, comparative samples submitted to the expert's disposal were confiscated in compliance with the criminal procedure law; when appointing, conducting and attaching the data of the examination to the case file, the rights of the victim, suspect, accused, defense counsel are not infringed; the expert is warned about criminal liability for giving a knowingly false opinion; the examination report contains all the necessary details, scientific substantiation of the conclusions that do not go beyond the competence of the experts; the content of the descriptive part and the conclusions contained in it correspond to the conclusions of the final part of the examination.

Based on these components, it is necessary to determine the criteria for the inadmissibility of an expert's opinion as evidence in a criminal case, clearly distinguishing which particular group of procedural violations or omissions we are dealing with in each specific case.

A forensic examination may be appointed only after the execution of investigative actions certifying the fact of the appearance of objects of research, as well as samples for comparative research. Violation of these requirements leads to the recognition of inadmissible evidence received, including expert opinions.