Challenge the conclusion of a forensic expert. Challenging the examination

Quite often, for one of the parties to a construction contract, the conclusion of a forensic examination becomes the main argument in court to protect their rights. Although in a trial, a conclusion on a construction and technical examination is just one of many pieces of evidence along with others. In this article we will tell you a case from our practice and give advice on how to appeal a forensic examination.

Appointment of forensic examination

In most cases, the subject of litigation is the dispute between the parties trial on issues of determining the quality, cost of work, volume of services performed under a construction contract. To determine the essence of the case, the court usually appoints a construction and technical examination and issues a ruling on it, which indicates the timing of the examination, the expert organization and the questions that the expert must answer.

Let us note that according to Article 79 of the Code of Civil Procedure of the Russian Federation, where if one of the parties evades participation in the examination, or fails to provide experts with the necessary materials or documents for research, the court reserves the right to recognize the examination of the other party to the case.

Questions posed to the expert

• When ordering an examination, the court is obliged to grant the right to the participating parties in a civil case to introduce issues to be considered during the examination.
• The judge must provide reasons for rejecting questions from participants in the process.
• The final range of issues where an expert opinion is required is mainly determined by the court.

Options for appealing a forensic examination

• In case of disagreement with the appointment of a construction and technical examination, one of the parties may file a private complaint against the ruling on the appointment of an examination or against the expert’s opinion regarding the construction and technical examination, but it provides procedural deadlines serves within which you need to meet.
• The next option is on procedural aspects, that is, certain errors when an expert carried out a construction and technical examination.
• Filing an objection to an expert’s conclusions or filing a petition to summon an expert to court to answer questions regarding the examination performed, in accordance with Article 85 of the Code of Civil Procedure of the Russian Federation. This law states that an expert is obliged to appear in court if one of the parties to a civil proceeding so requests. If the expert refuses to appear in court, in this case it will be possible to file a motion on the inadmissibility of evidence or it is best to present a specialist’s report containing other conclusions or bring it to court.
• The next option is to recognize the examination as insufficiently clear or incomplete and petition the court to order a repeat or additional examination. But the court has the right to appoint them only if there are certain grounds for this, such as: insufficient clarity of the expert opinion, incompleteness of the expert study, the presence of inaccuracies in the conclusion, if, when summoned to court, the expert did not answer certain questions of the court and the parties to the case, if other questions arose and etc..
• And of course, the last option is only through an appeal. Although there will be little chance if you have not used all the procedural rights listed above.

Still, it is worth noting that according to civil law, the expert opinion is considered one of the evidence, but according to judicial practice it is decisive in the legal process.

In judicial practice, sometimes doubts arise about the results of a forensic examination, regardless of whether it was appointed by a court or another body. Main reasons:

• Incompetence of the employee - education does not correspond to the knowledge for the research conducted;
• Short experience in the expert field - little experience or low level of training;
• Wrong choice of research method;
• Use of unapproved literature.

Is it possible to challenge a forensic examination?

The official orders an examination and re-examination. But only if incorrect previous research results are supported by evidence. The principle of adversarial law operates in the procedural code. Therefore, the dissenting party provides evidence of unreliable examination results.

It is difficult to challenge a forensic examination. After all, specialized knowledge is required to conduct a re-evaluation and the basis for challenging a forensic study. Participants in a procedural case will not be able to independently verify the veracity of the experts’ results. Even if their representatives have a legal education. It's about O:

• Correctness of the research;
• Recommendations;
• Using scientific literature.

To resolve this issue, it will be necessary to involve an independent expert. It will analyze previous results

In a civil case

If you do not know how to challenge a forensic examination in a civil case, The procedure is as follows:

1. Do you have doubts about the reliability of the conclusion? Appeal the expert’s verdict within one month;
2. To do this, contact the expert company that carried out the research;
3. Ask the Chief Expert to review your request.

If you are not satisfied with the decision, contact the Federal Bureau to challenge it. The case is considered for no more than 30 days. If authority has been delegated, take the complaint to another agency. Do you disagree with the Federal Bureau's verdict? Go to court to challenge a forensic examination in a civil case. A preliminary statement is drawn up, indicating the details of the victim, the grounds for disagreement, and conclusions in the form of quotes from a specialist.

Additionally, copies of research documents are attached. The appeal did not take place and the verdict was accepted by the district court? Contact the highest judicial authority.

Advice: Before contacting higher authorities, carry out an independent forensic examination.

Do you want to challenge it? Write a statement. In it, indicate the basic details of the applicant, as well as the reasons for re-conducting the study.

Additionally, provide copies of official documents for appeal. If the independent reviewer receives such a letter, he will instruct staff to challenge the study. For this purpose, a new composition is being assembled.

If the victim again does not agree with the expert’s decision, it is again challenged. In this case, the case is transferred to the Federal Bureau.

If you do not agree with the decision of the expert body, file an application with the court. In legislation Russian Federation There is no single form of judicial petition for appeal. It is important to follow business writing and meet the basic requirements to properly challenge:

• At the beginning, indicate to which expert institution the application is being submitted, as well as to whom it is written;
• In the text, describe the verdict of the forensic expert;
• Provide a list of organizations that are conducting this research;
• Enter information about the reasons for re-analysis.

Required documents

In addition to the application, copies of documents from the research carried out are provided. If interests are protected by a third party, a copy of the power of attorney is attached.

Before starting the appeal process, verify the facts. Look at yours evidence base. Typically reasons for retesting are:

• Incompetent specialists;
• Lack of a license from a specialist to conduct an examination;
• Providing an expert with someone else’s interests;
• Incorrect order of situation analysis.

In order to challenge an incorrectly rendered expert verdict, a statement is drawn up, supported by a documented opinion of another researcher on this process.

How to challenge the cost of an examination in court?

To challenge the cost of the examination in court, you will also need to write a statement. Costs may be as follows:

• The price of the services of an appraiser and a representative protecting the interests of the applicant;
• Notary fee and state fee.

The final cost depends on the type of object for which analysis is required. Therefore, the price of a forensic examination depends on the parameters of the object and sometimes reaches 100 thousand rubles. State duty - 300 rubles per individual. Price legal services- from 50 thousand rubles. In order to dispute the cost, contact another court. The competent authorities will carry out a thorough check.

The article did not help you, or you did not find a detailed answer to your question in it? Contact our lawyers! Consultation is free.

As is known, it is often true various categories cases (criminal, civil, arbitration, administrative, tax, customs) cannot be established 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. 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 using special knowledge.
Modern capabilities of 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) to establishing the truth in the case, protecting legally protected interests, rights and freedoms of clients.

Unfortunately, as in any other field of activity in lately in practice, we increasingly have to deal with improperly conducted and scientifically unsubstantiated expert opinions, which we have to “fight” by justifying their scientific groundlessness, inconsistency and the need to appoint additional, repeated, commission, and complex examinations.

It has long been accepted in practice (many still do this) that an expert’s opinion is indisputable evidence in a case that cannot be contested. 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 clarifications of the Plenum of the Supreme Court of the Russian Federation directly stipulates that no evidence in the case has predetermined value.
In a country where, as is known, both in the pre-perestroika and especially during the perestroika period, specialist diplomas were acquired (and are 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. Practice is replete with facts of deliberate distortion by experts, for various reasons, of the initial data of the subject of research, and other violations of the principle of expert independence, in order to draw up a conclusion “necessary” 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 ones, of 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 still 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 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 expert institutions, they are simultaneously are subordinate to the same executive authorities as the investigative apparatus and bodies of inquiry.

It is more than obvious that, in accordance with current legislation, the fundamental principle of expert activity is principle of independence, both the expert activity itself and the persons carrying out it 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 has a detrimental effect on the legally protected rights, freedoms and interests of legal entities and individuals and contradicts the goals laid down by the legislator in the Law of the Russian Federation on state forensic activity and other (industry) laws regulating expert activity.

The main reason for this state of affairs in expert (as well 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 set by the legislator.

As you know, there is an expression: “Two lawyers, three opinions.” The implementation of legal norms, as is known, is called law enforcement, which directly depends on the interpretation of legal norms by law enforcement officers that is adequate to the legislator’s thoughts. Can we count on hundreds of thousands (if not millions) of law enforcement officers in our vast country uniformly understood the thought of the legislator, embedded in the rule of law, and in accordance with this thought they implement the rule?
This seems to be verified by practice, and practice convincingly confirms that such a calculation and assumption is indiscriminate. The theory of law has developed numerous types of interpretation of law (legal norms) none of which, I dare say cannot replace the interpretation of the norms issued by the legislator himself.
As is known, and unfortunately, in our country this type of interpretation is practically not used, with rare exceptions. (for example, resolutions of the State Duma of the Russian Federation on the application of acts of amnesty).
Neither the resolution of the Plenum of the Supreme Court of the Russian Federation, nor, especially, other types of interpretation of the current rules of law (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 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 application of this rule. The trouble is that the judicial authorities, which are also called upon to be independent power and be guided by the rule of law, in practice, in their vast majority, cover all the shortcomings 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 harmfulness of this process for the entire justice system and constitutional guarantees of the right to defense.

Thus, the Moscow Regional Bureau of SMEs in one of the criminal cases charging brothers B.E. and B.D. in a double murder, as prescribed by the prosecutor's office, a number of forensic examinations were carried out: forensic biological; molecular genetic; forensic; medical and forensic. Despite what is established by law (Part 6 of Article 11) unified scientific and methodological approach carrying out examinations in each BSME, upon reviewing the numerous expert opinions of this Bureau, the following contradictory conclusions of experts of the same Bureau were established, which, nevertheless, formed the basis for the conviction by which the brothers B.E. and B.D. found guilty and each sentenced to 17 years in prison.

Based on the conclusion of the biological examination of the material evidence on the blade and handle of the knife found in the apartment of the murdered victims, the expert established the presence of traces of mixed blood, in which agglutigens “A” and “B” were found, characteristic of blood groups “A” - Pgr., “B” - Shgr. and “AB” - 1Ugr.
An examination of the blood of the accused by the same expert established that the accused B.E. – “Va” – Shgr. blood. Based on this, and “not noticing” that agglutigen “B” is characteristic not only of group III, but also of group 1U. blood - “AB”, without motivating his conclusion in any way, the expert writes that “the presence of the blood of the accused B.E. on the specified knife is not excluded." At the same time, it becomes unclear if the expert was independent and 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 agglutigen “B” as characteristic of 1U gr. – “AB”, for the sake of objectivity and fairness, did not indicate that it is not excluded that this blood belonged to another person with the blood group “AB”?

In connection with the statements of the accused about their alibi and their presence during the murder, indicated by the investigative body, on the way to the house, in connection with which, the impossibility of finding them at the crime scene and leaving any traces of blood, as well as in connection with available documentary evidence that during their arrest there were no bodily injuries on their body ( from which blood would flow) not found another expert of the same SME Bureau By order of the court, a re-examination of B.E.’s blood was carried out, 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 you don't need to be an expert to understand that accompanying blood antigen not a temporary resident of the body, but an antigen that is constantly inherent in a given 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 this person, whose blood is characterized by the accompanying antigen “H” would leave a trace of its blood on any object, then in this trace of blood the accompanying antigen “H” must be present and 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 carried out, while in strict compliance with the requirements of the current legislation, both criminal procedure and and about expert activities, the failure of the expert who examined the knife with which the murder was committed to detect the accompanying antigen “H” in mixed blood suggested the need to give a conclusion that the presence of the blood of the accused B.E. on the specified knife excluded.

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

It seems that it is necessary to understand the content of the term “independence” for an appropriate understanding and assessment of compliance with this principle when assigning and conducting examinations.
In the dictionary of the Russian language by S.I. Ozhegov, the term “independent” is defined as “independent, not subordinate, free... regardless of anyone, without connection with anyone, without limiting, without regard to anyone - anything."

In Art. 7 Federal Law-73 dated May 31, 2001. 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... Not allowed impact on the part of courts, judges, bodies of inquiry, persons conducting inquiries, investigators and prosecutors, as well as other government bodies, 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”, publishing house NORMA, Moscow, 2005, p. 95, admits: “... the independence of expert judgments, the independence of forensic examination is influenced by many factors and some 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, on the instructions of one of his superiors, transfer the examination to another expert if the conclusion made by the originally 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 investigative authorities, especially when it comes to forensic institutions of the Ministry of Internal Affairs of the Russian Federation. Thus, in the mentioned murder case, the initial operational actions and the detention of the suspects were carried out by officers of the Dolgoprudnensky Department of Internal Affairs. In connection with the discovery of 5 fingerprints at the scene of the incident, a fingerprint examination was ordered in the case, which was assigned to “expert” M. (in the conclusion he is referred to and signed as “chief specialist”) of the ECC of the Mytishchi Municipal Internal Affairs Directorate, i.e. body to which the Dolgoprudnensky Department of Internal Affairs is subordinate.
From the inspection report of the scene of the incident it is known that all 5 fingerprints were removed onto adhesive tape and transferred to white photo paper. The crime, according to the case materials, was committed on June 14, 2004. A fingerprint examination was scheduled on August 10, 2004, for the resolution of which the question was raised whether the fingerprints taken from the crime scene belonged to the accused B.D. and B.E. More than a month later, 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 entire preliminary and judicial investigation, 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, contrary to the protests of the defense, was entrusted to the same “expert” of the ECC of the Main Internal Affairs Directorate of the Moscow Region - M., who naturally confirmed his previous conclusion.

However, an objective analysis of the available case materials and the conclusions of “expert” M. indicates gross falsification of material evidence by investigators, which “expert” M., at whose disposal the case materials were provided, could not have been unaware of, from which it can be seen:
- according to the protocol for examining the scene of the incident, fingerprints were taken from adhesive tape and transferred to white photo paper;
- expert M. was provided with fingerprints for examination, confiscated on light-colored film (not on adhesive tape and transferred to photographic paper);
- the dimensions of the traces themselves and copying materials according to the inspection protocol of the scene of the incident were:
-the size of the first mark is 12x20mm, the size of the adhesive tape copying it is 30x35mm;
-the size of the second trace is 20x25mm, the size of the tape copying it is 40x40mm;
- the “expert” M. is presented for examination with dacteal film (and not adhesive tape glued to white photographic paper) with dimensions:
- the first trace is 17x21mm, and the film itself is 25x29mm;
- the second trace is 20x31 in size, and the film itself is 31x39mm.

Statements of the accused B.E. that on the eve of the date of the expert’s conclusion dated September 18, 2004, i.e. 09/17/04 he was brought from the Volokolamsk pre-trial detention center to Dolgoprudnensky, where he was taken to the office of the head of the criminal investigation department, 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, after which he drank this coffee and, Apparently, it was then that traces of his fingers were removed from the said jar and cup and planted in the case, were not taken into account by anyone (including the court).

In Part 2 of Art. 204 of the Code of Criminal Procedure of the Russian Federation directly stipulates: “If, during a forensic examination, an expert establishes circumstances that are important for the criminal case, but about which no questions were asked to him, then he has the right point them out in your conclusion.”
As can be seen from the above example, “expert” M., who had at his disposal protocols for examining the scene of the incident, from which he knew that all 5 fingerprints were removed 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 of the incident with the objects that were presented to him for examination in the form of light-colored dactyl films, and not adhesive tapes.

The case also established that, contrary to the requirements of the current legislation on forensic activities, in particular Article 13 of the Federal Law No. 73 of May 31, 2001. on the certification 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 specified in the murder case, despite the fact that he had a Certificate of the right to independently conduct judicial examinations examination dated 1998. expired after the statutory 5 years in 2003. and no other Certificate of re-certification was presented to either the investigative body or the court, which indicates that M. was not an expert and did not have the rights and powers to independently conduct fingerprint examinations. Despite this, the brothers B.E. and B.D. convicted including 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, from the case materials the following can be discerned:
The victim R. is sent by the investigator of the prosecutor's office, after accepting an oral statement of rape from her, on 05/07/06. for examination at the maternity 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 resolution on this, but sends letter to the head physician of the maternity hospital, in which, along with a request for an examination of the victim R. for the presence of bodily injuries in the genital area instructs maternity hospital workers to: remove swabs on gauze swabs, samples of vaginal contents, anus, oral cavity, combing pubic hair providing them with appropriate signatures and packaging (with separate presentation of gauze samples for which the seizure was made). That is, by letter (and not by resolution), the investigator instructs the maternity hospital staff, without witnesses, to carry out investigative actions, incl. and packaging of material evidence.

In a “document” compiled by maternity hospital staff without date, which they called “Examination”, along with the statement of the absence of any external and internal injuries in the victim R., indicated that the examinee had “moderate discharge from the vagina at the time of expected menstruation. At the request of the prosecutor's office... the material was taken for cotton swabs (the letter from the prosecutor's office asked for gauze) contents of the vagina, anus, from the mouth, combing pubic hair. At the request of the prosecutor's office handed over to the examined R. upon presentation of a passport.”

As can be seen from this “Inspection”, there is no information about the packaging of these biological objects, the provision of any packages with “appropriate inscriptions and signatures” and “the provision of these packages separately with samples of gauze for which seizures were made.”
However, by the end of the investigation, a protocol appears in the case seizures, allegedly, an investigator of the prosecutor's office on May 11, 2006. (i.e. 4 days after the examination) V specified maternity hospital:
“-samples of the contents of the vagina, mouth, rectum on cotton-gauze swabs;
-combing hair from R.'s pubis, packed in a paper parcel, sealed with paper, on which there is explanatory text 7/U-06, R.
-Plastic bag, in which it is located hygienic tampon, seized from R. during a medical examination, provided with a similar explanatory signature.”
It is more than obvious that the investigator falsified the seizure protocol dated May 11, 2006, because in the “Inspection” of the maternity hospital, firstly, there is no information about the packaging and labeling of any packages; secondly, it is indicated that all seized samples at the request of the prosecutor’s office handed over to R.; thirdly, it does not appear to have been seized and packaged at all plastic bag sanitary tampon R.
Despite these numerous violations of the requirements of the Code of Criminal Procedure of the Russian Federation, the conclusions of forensic biological and molecular genetic examinations of the indicated Bureau of the Medical Examiner's Office of the Moscow Region recognized that traces of his sperm were found at the indicated objects and belonged to the accused Ch.

IN recent years(however, as before), gross violations of the rights of the accused and defendants to defense have become the rule in the form of deprivation of their rights provided for in Articles 195 and 198 of the Code of Criminal Procedure of the Russian Federation when appointing and conducting certain examinations in the case.
The accused and his defense attorney are notified of the appointment of an expert examination in the case, contrary to the requirements of Part 1 of Article 198 of the Code of Criminal Procedure of the Russian Federation not at her purpose, but after the investigative 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 attorney are deliberately and artificially deprived of a whole complex of essential rights provided for in Article 198 of the Code of Criminal Procedure of the Russian Federation, incl. and the right to raise questions before the examination, select an expert institution and the expert himself, challenge an expert on certain for legal reasons and others.

Unfortunately, the bias 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 attorney as an equal participant in the process, despite the formal existence of a judicial mechanism for recognizing this type of evidence as inadmissible – Art. Art. 7, 75, 125 Code of Criminal Procedure of the Russian Federation, the overwhelming number of judicial bodies of the country with the notorious reference to the fact that “the court cannot enter into the assessment of evidence“at this stage of the process, they refuse to recognize this kind of “evidence” as inadmissible, while they, of course, have been collected in violation of the procedure established by the Code of Criminal Procedure of the Russian Federation.

At this stage, no one is asking the court to enter into an assessment of evidence. It's about about assessment court compliance with the norms of the Code of Criminal Procedure of the Russian Federation when obtaining evidence. In the above-mentioned criminal case of 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 attorneys with the decisions on the appointment of numerous examinations in the case and the examinations themselves, with which they were familiarized by after a period of 3 to 5 months after their appointment and implementation, they managed, when refusing to satisfy a lawfully and justifiably stated defense motion, to arbitrarily interpret the current criminal procedure legislation, indicating literally the following: “The law does not indicate the moment at which it should familiarize the accused and his defense with the decision to order an examination.” Elementary knowledge of the Russian language when reading the expression used by the legislator in Part 1 of Article 198 of the Code of Criminal Procedure of the Russian Federation "at purpose examination... “and compliance with the requirements of Part 1 of Article 17 of the Code of Criminal Procedure of the Russian Federation that judges must be guided by “the law and conscience” when assessing evidence would not allow such a free interpretation of the current law and the expression “when ordering an examination” to be interpreted as an opportunity to familiarize the accused with the decision on appointment of an examination not “at appointment”, but after the examination.

It appears that one of the reasons for the ongoing violation of these important rights of both the accused and their defenders is the insufficient perfection of the current version of this norm in its systematic interpretation with other norms of the current legislation on expert activities. I believe that inclusion in the Law of the Russian Federation “On Forensic Expert Activities in the Russian Federation” No. FZ-73 dated May 31, 2001. rules that “Expert institutions (experts) do not have the right to accept for examination materials on the purpose and conduct of examinations without the body (person) that appointed the examination providing a protocol of familiarization of the accused (defendant) and his defense attorney with the resolution (definition) on the appointment of this examination” would largely (though not completely) eliminate the numerous violations in this area.

It seems that, a priori, such an obligation still exists among expert institutions and experts, based on the following analysis of 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 Federal laws, has a greater legal force than the Law of the Russian Federation No. FZ-73 of May 31, 2001. Article 3 No. FZ-73 states that the legal basis for state forensic activity is the Constitution of the Russian Federation, a number of other laws, etc. Code of Criminal Procedure of the Russian Federation. In Article 4 of the Federal Law “On the entry into force of the Criminal Procedure Code of the Russian Federation” dated December 5, 2001. it is indicated that those operating on the territory of the Russian Federation federal laws(i.e., we must assume Federal Law-73 dated May 31, 2001) and others legal acts related to the Criminal Procedure Code of the Russian Federation (of course, Federal Law-73 is related to the Criminal Procedure Code of the Russian Federation on examination issues) subject to being brought into compliance with the Criminal Procedure Code of the Russian Federation. And further it states: “Until the said federal laws and other regulatory legal acts are brought into conformity with the Criminal Procedure Code of the Russian Federation are applied to the extent that they do not contradict the Criminal Procedure Code of the Russian Federation.”

In Article 4 of Federal Law-73 dated May 31, 2001. on the principles of state forensic expert activity is indicated the principle of respect for human and civil rights and freedoms.
Article 5 of Federal Law-73 of May 31, 2001. affirms the principle legality forensic activity subject to strict compliance with the requirements of the Constitution of the Russian Federation and other normative legal acts that form 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 human and civil rights and freedoms when carrying out 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 allow us to assert that since in the Federal Law-73 of May 31, 2001. 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 into compliance with it and, before being brought into compliance, 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 that based on the current Constitution of the Russian Federation and the given norms of the current legislation, the conclusion is that experts do not have the right to accept materials for the production and conduct of an examination in the absence of proper data on the familiarization of the suspect (accused, defendant) and their defense attorneys with the resolution (ruling) on ​​the appointment of this examination, i.e. compliance with the rights of these participants provided for in 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 that “the rights and freedoms of man and citizen are directly operating and determine the meaning, content and application of laws...and are ensured by justice...and nothing can be a basis for their derogation (Article 21)" , the federal laws themselves (No. Federal Law-73 of May 31, 2001 and the Code of Criminal Procedure of the Russian Federation) affirm this principle, the right to defense is not only a criminal procedural, but, first of all, a constitutional right, it seems that Article 199 of the Code of Criminal Procedure of the Russian Federation should be supplemented Part 6 reads as follows:
Part 6 “If the materials sent for the examination do not contain a protocol of familiarization of the accused (suspect) and his defense attorney with the decision to order the examination, the expert is obliged to return without execution the decision to order the forensic examination and the materials submitted for its production, indicating the reasons for the return.” A similar addition should be made to Art. 14 and 16 No. FZ-73 dated 05/31/01. “On state forensic activity in the Russian Federation”, regulating the responsibilities of the head of the expert institution and the expert.

Facts of incompetence or lack of competence of experts have recently increasingly come to light in numerous criminal cases. Despite the requirements of the Law on State Forensic Expert 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 examination methods, frivolously counting on the lack of special knowledge among the participants in the process, as well as based on other motives not based on the law, Unscrupulous and insufficiently competent experts increasingly present conclusions to the investigative and judicial authorities that are “convenient” for them, but are absolutely not in compliance 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 qualified the conclusion is drawn up, i.e. the question of assessing an expert’s opinion is very difficult, since judges do not have special knowledge and it is difficult for them in the modern conditions of the scientific and technological revolution, when expert techniques are becoming more and more complex, to deeply understand expert technologies. Judges evaluate an expert’s opinion mainly on formal grounds.”

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

It seems that this is not an idle requirement of the law, because in Article 4 of the same law, which established the principles of state forensic activity, one of the important principles established the principle of conducting expert research using modern achievements of science and technology. In close connection with these norms are the requirements of Article 8 of the same law, which states that the expert’s research must be carried out on a strictly scientific and practical basis and Expert opinion should be based on provisions enabling check validity and reliability 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 presupposes the need for mandatory indication in the Expert's 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 certification, 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’s Conclusion leads in practice to the fact that persons (employees of the expert institution) who do not have the mentioned Certificate (or it has already expired, and there has been no new certification) are involved in the examination and, therefore, they cannot be recognized as experts and the Conclusions signed by them should not be recognized as evidence in the case. In the aforementioned criminal case of murder, “expert” M., who did not have a Certificate of Recertification within the time limits established by law, signed 3 conclusions of a fingerprint examination, signed them not as an expert, but as “Chief Specialist of the ECC of the Central Internal Affairs Directorate” and on these Conclusions, contrary requirements of Article 25 of Law No. FZ-73 of May 31, 2001. The seal was not of the “state forensic institution”, but the seal of “No. 67” of the Dolgoprudny Department of Internal Affairs. The Moscow Regional Court, and subsequently the panel of the Supreme Court of the Russian Federation, did not even pay attention to this, condemning individuals 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 placed on the expert’s report when conducting an examination by an employee of a non-expert (state or non-state) institution is also 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 research works, which cannot be recognized as an action based on the law. The literature suggests that in such cases the expert’s report should be notarized.
In connection with the adoption of Law No. FZ-73 of May 31, 2001. by order of the Minister of Justice of the Russian Federation dated January 23, 2002. No. 20, the “Regulations on the certification of workers for the right to independently conduct forensic examinations 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 conducting 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 be assigned this right, in particular, there is an obligation to know “modern methods and techniques for conducting examinations” according to your expert specialty and own them." The issue of issuing a Certificate is regulated in paragraph 20 of this Regulation. Clause 24 of the Regulations stipulates that in this Certificate and the Forensic Expert Card, notes are made that The expert's right to independently conduct a forensic examination has been extended. 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 to reflect in the Expert's Conclusion the number and validity period of the Expert's Certificate of the right to conduct an independent examination appears to deprive the participants of the process of the right to know whether a proper and authorized specialist carried out the examination. This situation potentially contains the possibility of violating the legally protected rights of the suspect, accused and defendant, which, as shown above, often occurs 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, mandatory for experts, when conducting examinations, seems to make it difficult for participants in the process to evaluate expert opinions and determine their suitability for giving them evidentiary value. Thus, the Instruction of the Ministry of Justice of the RSFSR dated December 10, 1974 is currently in force and is mandatory for experts. “On the procedure for conducting 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 Order of the Ministry of Justice of the Russian Federation No. 346 of December 20, 2002. “On the conduct 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 have an important role in assessing the evidentiary value of expert opinions, their compliance with mandatory rules and methods during examinations, on which the scientific validity of the conclusions they make, and ultimately the fate of persons in whose cases these examinations were carried out and formed the basis for the verdict.
So, for example, in the mentioned criminal case of Ch., accused under Articles 162, 131 and 132 of the Criminal Code of the Russian Federation, in one of the examination reports (molecular genetic), the expert writes: “... by extraction in a 10% ammonia solution for 20 hours of numerous cuttings on panties, jeans, sanitary pads, tampons with the contents of the vagina, oral cavity and rectum of the victim R., centrifuged the tubes and removed excess liquid, prepared smears from sediments on a glass slide, which, after evaporation of the liquid, were stained with a 1% solution of hydrochloric fuchsin and microscopically." The name of the technique used and the source of this technique are not given in the expert’s report.
In another criminal case on charges against M. 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 OX and GLC methods with MSD.”
Original! Guess it yourself.

Meanwhile, in paragraph 42 of the mentioned Instruction of the Ministry of Justice dated December 10, 1974. stated: “The research methods and techniques, as well as their results, are presented clearly, clearly, understandable to persons without special knowledge, and in such detail that, if necessary, it is possible to verify the correctness of the expert’s conclusions by repeating the study. SPECIAL TERMS MUST BE EXPLAINED."
In addition, in accordance with clause 9, part 1, article 204 of the Code of Criminal Procedure of the Russian Federation and article 25 of the Federal Law-73 of May 31, 2001. the expert’s conclusion 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 of December 20, 2002. in the introductory part of the conclusion it is indicated, including:
- “...work experience By that expert specialty, according to which a forensic examination is carried out;
- reference materials and regulatory documents (with a full indication of their details), which guided the expert in resolving the issues raised.”
In accordance with clause 2.4 of these Methodological Recommendations, the research part of the conclusion indicates “the methods used, research techniques, and special software. In the case of using standard expert methods and expert research schemes set out in methodological publications, a reference is made to them and full details of their publication are indicated; in the case of using automated programs or software systems, information about the institution that developed them is provided.”
In paragraph 41 of the Instruction of the Ministry of Justice dated December 10, 1974. provides for the need to reflect “the circumstances of the case - in cases where they are essential for giving an opinion.” In paragraph 42 of the same Instructions, in addition to describing the research process and its results, it is necessary to provide “ scientific explanation established facts." The same paragraph of the Instructions, in addition to the circumstances provided for by the Methodological Recommendations dated December 20, 2002. To reflect in the research part of the conclusion on the issue of the methods used, it also provides for the need to reflect:
-“methods and techniques of expert research; the number, sequence and conditions for performing expert experiments, the number of comparative samples obtained and the conditions for their preparation”;
-justification accepted values technical quantities when making calculations;
- conditions of use of scientific and technical means used in research, technical parameters, taken in the calculations;
- data on literary sources or reference and normative documents used in conducting research (author or name of publisher, name of work or normative document, place and year of publication, pages).
It is also important to regulate these departmental regulations period of examination. This issue is not regulated in the current legislation. Clause 29 of the Instruction of the Ministry of Justice dated December 10, 1974. The deadline for the examination was established “within 10 days” based on materials “without a large number 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 these Instructions establishes a procedure in 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 paragraph, cannot exceed 5 days. The next, 31st paragraph of the Instruction establishes the procedure for calculating deadlines, which begins from the day following the day the materials are received by the expert institution, until the day the conclusion is sent (notification of the impossibility of giving an opinion) to the body that appointed the examination. If the end of the examination period falls on a non-working day, the end day is considered to be the next working day. The period for conducting the examination is suspended for the period of waiting for the satisfaction or refusal of the expert’s request to provide additional materials. The suspension of the period for carrying out the examination occurs in accordance with clause 21 of the Instructions and in the event of incorrect registration by the body that appointed the examination of materials sent for examination.
As is known, in practice we are increasingly faced with facts of an uncritical attitude towards expert opinions. Meanwhile, in the current and current resolution of the Plenum of the Supreme Court of the USSR No. 1 of March 16, 1971. “On forensic examination in criminal cases” in paragraph 14 directly states: “Draw the attention of the courts to the need to eliminate cases of uncritical attitude to the expert’s conclusion. By virtue of Article 17 of the Fundamentals of Criminal Proceedings of the USSR and 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 conclusion does not have pre-established force, does not have an advantage over other evidence and, like all other evidence , is subject to assessment according to 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 resolution contains important guiding clarifications that the probable conclusion of the expert cannot be used as the basis for the verdict.” Meanwhile, practitioners know that judicial practice is replete with facts, firstly, of the predominance of the number of probable expert opinions over categorical ones: “may have..”, “not excluded”, etc., secondly, the courts making such probable conclusions of experts of evidentiary value and contrary to the specified guiding explanations, their justification of guilty verdicts.
In the current conditions, it seems that the defender, in addition to knowledge of the current legislation in the field of expert activity, also needs knowledge of the current rules of production various types examinations, which are regulated by departmental regulations and with the help of which it is possible to check and evaluate compliance by experts in the production of one or another type of examination with the order and methodology of their implementation, on which the scientific validity of the conclusions made and their evidentiary value depend.
For example, everyone knows that in recent years, in legal proceedings, more and more often we have to deal with a type of examination that is gaining momentum - molecular genetics.
Being the most modern and most evidence-based method for evidentiary identification of a person (even called genetic fingerprinting) it is also characterized by a high degree of complexity. In this regard, as a type medical activities, genetic examination subject to mandatory licensing Central Commission of the Russian Ministry of Health for licensing of medical activities. By order of the Russian Ministry of Health dated April 24, 2003. No. 161 determined that molecular genetic examination can be carried out in specialized laboratories of the forensic bureau medical examination, having a license for this type of activity. In the mandatory annex to such a license, the list of “Permitted types, methods and works” must indicate: “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 relevant medical care, subject to licensing" (Order of the Ministry of Health of Russia dated July 26, 2002 No. 238).
A random check carried out by the Russian Center for Forensic Medical Examination of the Ministry of Health of Russia, according to its information letter, revealed gross errors made during the conduct 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 deprivation of liberty, then the fate of the client largely depends on the degree of readiness of the lawyer to adequately evaluate molecular genetic examinations. IN medical literature The most common causes of errors in molecular genetic examinations are noted.
In existing Methods of possible causes of errors in molecular genetic studies, incl. associated with contaminants leading to incorrect determination of genomic profiles and insufficient initial amount of template DNA indicates “false genotyping.”

False genotyping
Experts will distinguish two reasons for the false result of one genomic profile being similar to another. Firstly, the presence of foreign genetic material in the compared DNA preparations, which can simulate 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 heterozygity of the analyzed objects. This is due to artifacts of the polymerase chain reaction that arise under the influence of suboptimal conditions for its implementation, among which experts indicate various reasons, including:
- insufficiency of starting 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 should be) and others.
According to experts in this field of knowledge, “Genetic examination technology is a tool with which you can establish the truth, but this only happens when this tool is used by knowledgeable people.”
At a minimum, the reasons for possible errors in molecular genetic examinations noted above by the experts themselves - false genotyping - suggest the need for a lawyer to checks:
- Was the source material sufficient for the examination?
-Is there information about the quality of the drugs used?
- Do the technical parameters of the devices used comply with GOST requirements?
- was the operating temperature selected correctly?
and other data provided for in the Methodology for conducting this type of examination.

As is known, numerous rules for conducting various examinations cannot be provided for in the law itself. However, it seems that successful defense in cases in which certain examinations have been carried out or need to be carried out objectively requires the defender to know these rules that are mandatory for experts, both for the purpose of skill in exercising the rights provided for in Art. 198 of the Code of Criminal Procedure of the Russian Federation to competently pose before the examination the relevant questions in the case, as well as to check the compliance of experts with their duties and Methodological recommendations when conducting examinations. This knowledge is often necessary for the defense to file petitions to reformulate the questions posed to the examination by the investigative body (or the court) or to exclude questions posed by them that do not fall within the competence of the experts (for example, legal issues or questions from other areas of knowledge).

By order of the Ministry of Health of the Russian Federation No. 161 of April 24, 2003. Instructions for organizing and conducting expert research in the Bureau of Forensic Medicine were approved, consisting of 10 sections and regulating the conduct of numerous important expert studies. It is not possible to describe and analyze in detail these rules from the point of view of developing techniques and ways for a defender to work with them within the framework of this article. I will dwell only on a number of expert opinions in criminal cases that are often encountered in practice.
Thus, section U1 of the Instructions is devoted to forensic biological expert research.
P.6.2.2 “...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. ...destroying 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 May 31, 2001. on the safety of research objects and the prohibition on the destruction by experts of research objects or significant changes in their properties without the permission of the body or person who appointed the examination at the same time, it causes a certain bewilderment. Why do these norms bind the prohibition of destruction or significant modification of research objects? only with the consent of the body or person who appointed the examination?
Where is the consideration of the right of the accused (suspect) to defense? Where is the consideration of procedural equality between the prosecution and defense in criminal proceedings?

Practice is replete with facts of non-consensual, and often deliberate destruction, both by investigative authorities and, in agreement with them, by experts of research objects in order to exclude the possibility of double-checking the validity of the expert opinion, to the detriment of the legitimate interests of the involved to criminal liability of a person.
Thus, in the aforementioned murder case, the investigator, who acted with a single accusatory bias, committed dozens of gross violations requirements of the norms 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 these biological objects are suitable or not for their expert study, and practice indicates the possibility of research and discovery of evidence important to the case, incl. and in putrefactive objects. Thus, the method for determining group affiliation in putrefactively altered research objects is described in the manual for forensic physicians by Professor L.O. Barsegyants. “Forensic medical examination of material evidence (blood, secretions, hair)”, M., Medicine Publishing House, 1999, pp. 79-82.
In another case mentioned above, on M.’s charge under Article 228.1 of the Criminal Code of the Russian Federation, the expert, with the consent of the investigator, used up a completely powdery substance, which he recognized as the narcotic drug “Amphetamine”, while according to the case materials this substance, when sent to the examination was not recognized as material evidence in the case, and after the examination the investigator issued a resolution to include this in the case materials spent substances, which essentially means adding “air” to the case materials. 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 encounter this, which has already become a fashionable practice, of destruction (complete expenditure) of research objects, both agreed with the persons who appointed the examination, and without it.
It seems that the legislative leaving of this important issue solely at the discretion of the prosecution, without taking into account the opinion of the person prosecuted and his defense attorney, is, at a minimum, unfair.
Clause 6.2.3 of the said Instructions establishes the rule according to which “liquid blood and other perishable materials are examined no later than the next day after their arrival at the department.”
It seems that this rule presupposes in the work of a lawyer, firstly, a check of what is meant by the concept of “other perishable materials”?; secondly, whether liquid blood and/or “other perishable materials” were delivered for examination within a time frame acceptable for their examination no later than the next day after their admission to the department?; did and how did violation of these deadlines affect the results of the study?; where and at what temperature conditions Were these objects stored prior to their examination?
Clause 6.2.5 of the Instructions requires that before the everyone research the suitability of the reagents and reagents used was checked (their specificity and activity), which appears to involve verification by the defense attorney when reading the expert's report this is reflected in the expert’s report.
The next important point of the Instructions – 6.2.7 – regulates the examination and description of physical evidence by an expert and requires the indication of “a complete characterization of traces of biological origin. At the same time, the basic principle is observed: 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, dirt, etc.”
In this regard, it seems that the defender is obliged to check the full reflection of all specified data for each biological object and their immutability and possibility of identification at all stages of the investigation and trial and all 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 expert opinions and initiated during the judicial investigation the corresponding petitions to declare the specified “evidence” inadmissible, to conduct additional, repeated, commission or complex examinations, it became “fashionable” to involve the court “at the request of the prosecution” as “witnesses” of the investigators who investigated the case and committed these violations, in order to give the appearance of legality to the illegal procedural actions taken. Unfortunately, the courts, with reference to the testimony of these “witnesses” in court, leave the committed procedural violations unnoticed and attach evidentiary value to this kind of procedural documents. Meanwhile, the current The Code of Criminal Procedure of the Russian Federation does not provide eliminating procedural violations of investigators and prosecutors by interrogating them as “witnesses” in cases they investigated.

Thus, in the above-mentioned murder case, in connection with the discovery of forgery of material evidence: fingerprints copied on light-colored film, which was not used according to the protocol for the inspection of the crime scene, and the discovery of a difference in the size of the objects of study according to the protocol for the inspection of the crime scene and according to the expert’s conclusion, in the investigator in the case and the specialist from the ECC of the Central Internal Affairs Directorate, who participated with him in examining the scene of the incident, were invited to the court as “witnesses”, who “explained” these contradictions by the “many hours” of examining the scene of the incident and the associated “fatigue”; taking measurements while wearing gloves, “what could explain measurement errors,” etc.
Clause 6.2.8 of the Instructions imposes special requirements for 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, size, features.”
These data, it seems, can be very important for the defender’s assessment of the validity of the expert’s conclusion, the latter’s compliance with the requirements for the expert’s conclusion set by law and the Instructions, and, finally, the legality of the examination in general. Unfortunately, in practice, attention is rarely paid to the expert’s obligation to draw up a reasoned written report about the impossibility of giving a conclusion...., if the questions posed go beyond the expert’s special knowledge, objects of research and case materials unsuitable or insufficient to conduct research and give an opinion and the expert is denied their addition; The current level of development of science does not allow us to answer the questions posed.”

Meanwhile, there are quite a few such grounds in practice. For example, the requirements of the specified Instructions to reflect “the texture on which the trace is found, its size, the degree of impregnation” are directly related to the question: how much biological substance does this trace represent? Related to this is the important question of whether is the amount of the detected substance sufficient to produce the required full research or studies with it and preserving part of it 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 May 31, 2001?

It appears that each Research Methodology has its own required amount of the biological substance under study in order to fulfill the requirements of the law and Methodological Recommendations on this study. If the defense attorney is familiar with the specified Methodological Recommendations and, in this regard, knows that, for example, for the full detection of traces of semen using available methods, the minimum required quantity should be 0.1 ml., and the volume of biological substance found on the non-impregnated texture is significantly smaller quantity, 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 05/31/01. must draw up a reasoned written refusal from giving a conclusion with reasons for such a decision, and not to give a conclusion to please the investigative authorities a conclusion “on the detection” of traces of sperm on the object under study!
The requirements of the specified paragraph of the Instructions on reflecting the “localization, color, shape, contours” of a biological object may be useful for clarifying the statute of limitations of 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 the blood group (in the absence of the person of interest) based on the results of the study sweat from the person's personal items.
Paragraph 6.3.7 of the Instructions provides for the possibility of determining by blood testing gender and regional origin of blood using special methods:
- belonging of blood to a pregnant woman using a gravidagnosticum;
-differentiation of peripheral and menstrual blood electrophoretic and cytological methods.

Unfortunately, in practice, ignorance or insufficient knowledge of these issues by defenders and lack of necessary experience make it difficult to “fight” this kind of “expert opinion,” which leads to known consequences for the protected person. Of course, one cannot 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 that the defender must have knowledge of the mechanism for combating such examinations. In addition, as is known, the current Code of Criminal Procedure of the Russian Federation allows the defender, if necessary, to contact alternative experts (specialists) in relevant fields of knowledge on a contractual basis, who can help the defender both in adequately understanding the expert’s conclusion, assessing its scientific validity, and in refuting unfounded expert opinions. conclusions. It seems that the possibility of inviting an alternative expert (specialist) to the court on his own initiative by a lawyer for his questioning at the request of the defense is also effective, which the court, in accordance with the requirements of Part 4 of Article 271 of the Code of Criminal Procedure of the Russian Federation, does not have the right to refuse to the defense.

In addition, in connection with the recently published 03/10/2007. Administrative regulations of the Federal Service for Surveillance in Healthcare and social development by execution government functions on monitoring the procedure for conducting a medical examination, approved. By Order of the Ministry of Health of the Russian Federation No. 900 dated December 31, 2006. and registered with the Ministry of Justice of the Russian Federation on February 19, 2007. under No. 8959, seems to be an effective and promising direction in the “fight” against scientifically unsubstantiated and procedurally flawed expert opinions in a timely manner, i.e. 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 - Federal service on supervision in the field of health care. The right to appeal this type of examination is provided for in Article 6 of Federal Law No. 73 of May 31, 2001.

Knowledge of the capabilities of modern expert research and the rules for conducting it will greatly help the defender take this into account when building a line of defense and adequately assessing expert opinions.
The result of this painstaking and, of course, difficult work a defender in an unequal struggle with such conclusions of “experts” may find himself with a feeling of deep satisfaction with a fulfilled duty, and possibly with saved human destinies.

Lawyer of Legal Consultation No. 63
Inter-Republican Collegium of Lawyers R.G. Ambartsumov

It is quite difficult to refute any examination or appeal an expert’s opinion; this document is almost the most important argument in a trial. Conclusions in the examination are made after various studies by the professional and materials presented by other persons. Without the necessary knowledge of legislative acts, the defense representative will not be able to refute the conclusion.

What you can do yourself

The specialist's conclusions are independent. It is only for this reason that the court, which accepts all the grounds in the case, relies on him so confidentially.

It is necessary to file an appeal against the conclusion if you notice obvious errors in the document or, conversely, a lot of information is lost or secretly hidden. Any decision or any specific action of the expert, which aroused doubts on the part of the defense, may be challenged in the court of first instance.

You can challenge the conclusions if:

• the expert does not comply with the norms of the Law “On Forensic Expert Activities in the Russian Federation”, and does not keep the examination decision secret, other persons are involved in the investigation of the facts;
• the current level of qualification of the specialist is not enough for him to produce conclusions that will be attached as evidence of the guilt or innocence of the suspect;
• if an expert makes an assumption in his decision, then this cannot be with good reason to consider conclusions as an argument;
• during the trial, new facts appear in the case that contradict or do not confirm the expert’s conclusions;
• during the course of the case, the rights of any of the parties were violated, which could lead to an incorrect outcome of the case.

A participant in a trial can fully exercise his rights and fully familiarize himself with the results of the examination. He can ask the specialist questions, and if the decision cannot be reviewed, he must be informed of this. Any person independently and without any connections can file a petition to challenge the conclusion.

It is worth demanding that the examination be carried out a second time - an inspection by a special expert organization.

If new evidence has been revealed in court, a participant in the case may ask for the same examination to be carried out again, which will soon make changes to the conclusion, and for a new examination if the case has taken a completely different turn. The two parties to the lawsuit have the right to answer questions and provide explanations when considering the attached opinion.

Sometimes one of the parties conducts its examination with the help of other legal specialists who do not hold the position of experts or court employees. Such a conclusion may not be accepted by the other participants in the process if the examination is not relevant to proving guilt or innocence.

If the expert is lying

Unfortunately, experts are also people and they may provide incorrect information in a document.

Under the influence of personal prejudices (for example, material gain, personal interest or loved ones family ties), they can completely change the fate of the two sides of the case.

You need to carefully study all the materials and nuances of the case, and if it is legal, and the essence of the conclusion, in order to be confident in the veracity of the information.

Code of administrative offense in the Russian Federation implies punishment for providing false information in court. This is a crime for which the expert is subject to criminal punishment in accordance with the legislation of the Russian Federation.

It is necessary to point out the false testimony of a specialist - these are:

• the conclusions of the decision do not correspond to the real facts;
• neglect of part of the existing material when writing expert conclusions;
• adding false facts to the case;
• obtaining facts by criminal means;
• distortion of the properties of the objects of conclusion.

If specially designated bodies establish that the examination is not truthful, then it can no longer be presented by the expert in the form of the main and reliable argument.

Due to the fact that the duties of a judge’s job do not include checking the reliability and correctness of the conclusion, you should turn to experts who are certified and can legally perform a review.

How to insist on your own

The main thing in challenging an examination is activity.

If one application is denied, you need to submit a second one. Very often the loser is the one who does not show interest and activity.

If a person knows the law and has evidence of the invalidity of the examination, then he can safely prove this in court more than once.

In order to definitely prove an untruthful expert verdict, the expert’s lack of authority, or information about omitted or hidden facts, each conclusion and speculation must be confirmed and argued. Only then will the conclusion be re-examined or edited.

The petition must be drafted efficiently and competently, so you should seek help from a lawyer. If at the trial it seemed to you that the expert treated you with the slightest bias or disdain, then be sure to indicate this fact in the document. The slightest comments that may change the judges' decision regarding the conclusions must be written down in the petition.

Motives for false conclusions

An untrue verdict from a specialist is obviously false information for the law and the court.

He is warned that lying may result in criminal liability.

Experts' motives for providing false conclusions:

1. the expert’s interest in money (a bribe from some person who benefits from such a transaction);
2. fear of ruining the relationship with one of the parties in order to shield the culprit (is in a related, family or intimate relationship with one of the participants in the process);
3. the expert personally benefits from false conclusions (biased or negative attitude towards one of the parties);
4. the desire to minimize or exaggerate the guilt of the suspect (sympathy or antipathy for the participant in the case).

The motive for making a false conclusion is most often an interest in additional finances. Experts take a huge risk, because the criminal code punishes a false expert decision with a fine, community service or imprisonment.

You need to defend your rights at all stages of the trial. And in order to reach the end and emerge victorious, you need to take an active procedural position, enlist the support of lawyers and lawyers, qualified companies, and independently study the legislative framework of the Russian Federation.

An appeal against an expert opinion in civil proceedings is possible independently if the expert’s false conclusions were motivated by financial or personal interests.

An expert is a person who has specialized knowledge. They engage him for a fee in order to give a qualified opinion or judgment on the issue being resolved or under consideration to persons less competent in this field.

The need for expertise may be required in different categories of disputes. For example, in criminal, administrative, arbitration, civil and other cases. A forensic examination can be carried out by any person who has special information. This concept refers to knowledge in various fields of science, as well as technology, art, etc. Therefore, in order to prove certain facts, judges often require the help of such specialists.

Usually the expert opinion is not in doubt. But there are situations when doubts exist about the competence of the candidate under consideration or about the correctness of his conclusion. Then the question arises: “How to challenge an expert’s opinion and what is necessary for this?”

Types of examinations

The capabilities of examinations are constantly expanding. The same applies to the quality of this procedure. Hundreds are appointed annually various types examination What are they? A forensic expert's opinion may be needed in various fields of knowledge. The most common areas are the following: medical, psychiatric, graphological, engineering, linguistic, merchandising. Expertise in the automotive, forensic, physico-chemical, and fire-technical fields is also required. This can be the study of video and sound recordings, photographs, art historical information, etc.

The examination can also be a commission examination, that is, carried out by several specialists who practice in the same field. Or it can be complex. This means that it is carried out by several experts with knowledge in different fields of science.

Organs

In addition to state bodies for conducting various types of examination, there are many independent structures. Their appearance has a positive impact, since the principle of competition is implemented. On the other hand, independent expert bodies may hire unscrupulous specialists. Such employees, not having all the necessary knowledge, can issue a false expert opinion, which can subsequently have a significant impact on the outcome of the case under consideration.

State bodies include forensic bodies, expert bodies under the Ministry of Internal Affairs, the security service, and the customs service.

False expert opinion

Since very often the conclusions of experts influence the final decision of the court, the parties to the case try in every possible way to influence the result. Despite the fact that knowingly giving a false expert opinion is considered a criminal offense, some experts, in pursuit of material gain, do it. Therefore, if there is any doubt about the veracity of research results, they can be appealed.

Wrong conclusion

In addition to a false expert opinion, there is an erroneous decision. It has its own characteristics. It differs from a false one in that the expert does not come to a certain conclusion intentionally. And this most often occurs due to insufficient competence of the specialist.

How to challenge an expert's opinion?

A participant in a trial has the right to challenge the expert research. To do this, you need to contact the body (bureau) that carried out the procedure, or file a protest with the main bureau. A participant in the process may appeal a knowingly false expert opinion or an erroneous decision within a month after receiving the results. To challenge the examination, an application signed by the participant in the case or his representative is submitted. The document in question indicates the surname, name, patronymic of the applicant, and the reasons for appealing the expert opinion. Copies of documents appearing in the case must be attached to the application. You will also need a copy of the contested study result. If a protest in a court case is filed by a representative, then a power of attorney is attached to all of the above documents. After receiving an application for appeal, the chief expert, with the permission of the applicant, is obliged to assign a re-analysis to another expert group from the bureau. If the applicant does not agree with the decision of the chief specialist, then he has the right to protest it.

Protesting the decision of the chief specialist

How to challenge an expert's opinion? The decision of the chief specialist can be appealed by filing a complaint with the Federal Bureau within one month. For the purpose of conducting an examination, a federal agency may delegate authority to another agency. But this is done subject to the consent of the applicant. If the Federal Bureau itself will carry out the examination, then the period for completing the procedure is thirty calendar days.

Appealing the decision of the Federal Bureau

Another way to challenge an expert’s conclusion, if the participant does not agree with the conclusion of the Federal Bureau, is to go to court to evaluate the results of the research. An application is submitted for this purpose. It must contain the following information.

1. Name of the judicial authority.
2. Applicant details.
3. List of bodies involved in the examination.
4. Indication of specialist decision.
5. Reasons that raised doubts in the expert opinion.

The application is accompanied by the decision of the Federal Bureau and copies of all production examinations.

Research in criminal proceedings

An expert plays one of the most important roles during a crime investigation, since the help of this specialist, who has knowledge in various fields, helps to identify the criminal. The Criminal Procedure Code defines an opinion as conclusions or research on issues provided in writing to an expert by a person involved in the proceedings in a given case.

Various documents, objects, corpses, animals, clothing, etc., that is, materials of the case under investigation, may be subject to expert examination. A forensic examination can be carried out both during the investigation and before the initiation of criminal proceedings. An error in conclusion or a false decision can lead to the conviction of an innocent citizen. As a result, he will have to bear criminal responsibility for a crime he did not commit. This is very serious. That is why the specialist also bears certain legal liability for an incorrect conclusion.

Civil process

What role does expert testimony play in civil proceedings? Let's find the answer to this question. The Code of Civil Procedure establishes the procedure for the production and appointment of an examination on civil cases. It also defines the duties and rights of the expert and other participants in the process. In a civil case, an expert opinion is evidence in the case under consideration. It contains information about facts that have some significance for a given process. An examination in a civil case may be appointed when preparing materials for a hearing or during the trial. The initiators of the appointment can be both persons interested in the case and judicial body. In some situations, an expert opinion is required. Example: forensic psychiatric examination in a case of recognizing a citizen as an incompetent member of society due to dementia or mental illness.

Most often, research is conducted outside of court. But if the nature of the procedure allows, then it can be carried out in court. Proceedings in a civil case may be suspended when an expert examination is ordered.

In civil cases in judicial practice there are the following types expert opinions:

Evaluation of the expert's opinion by the court

When assessing the expert’s final decision, the court must be convinced of the scientific validity of the conclusions made by the expert. For this reason, information is clarified about whether the expert answered the questions posed or not. It also matters what scientific methods were used by a specialist, are there any contradictions between the conclusions and the research part, etc. The court evaluates the expert opinion in conjunction with other collected evidence in the case. If the body does not agree with the outcome of the study, then it must give reasons for this. After which the court has the right to order a re-examination.

If the conclusion after the research procedure is incomplete or not clear enough, then the court has the power to order an additional research procedure.