Commentary on Article 116. Expert Opinion and Testimony of an Expert of the Criminal Procedure Code of the Republic of Kazakhstan
1. An expert opinion is a document prepared in accordance with the requirements of this Code, reflecting the course and results of a forensic examination.
2. Oral explanations provided by an expert constitute evidence only insofar as they clarify the opinion previously given by that expert.
3. An expert opinion is not binding on the body conducting the criminal proceedings; however, any disagreement with the opinion must be substantiated.
4. Expert testimony consists of information provided by the expert during an examination conducted after the receipt of the expert opinion for the purpose of explaining or clarifying that opinion.
After conducting the necessary examinations and taking their results into account, the expert prepares a written opinion in their own name, certifies it with their signature and personal seal, and submits it to the body that ordered the examination. Where the examination is conducted by a forensic examination authority, the signature of the expert (or experts) shall be certified by the seal of the said authority (Part 1 of Article 116 and Part 1 of Article 283 of the CPC).
The requirements concerning the form and content of an expert opinion are set out in Part 2 of Article 283 of the CPC. Materials illustrating the expert opinion (photographic tables, diagrams, graphs, tables and other materials), certified in accordance with the procedure provided for in Part 8 of Article 283 of the CPC, shall be attached to the opinion and constitute an integral part thereof. The objects remaining after the examination, including samples, must also be attached to the opinion.
3. An expert opinion is ordinary evidence in a case and does not have precedence over other evidence or predetermined evidentiary force; it is examined, evaluated and used in conjunction with other evidence in the case. The court's disagreement with an expert opinion must be substantiated in the judgment or ruling (Paragraph 11 of Regulatory Resolution No. 16 of the Supreme Court of the Republic of Kazakhstan dated November 26, 2004, “On Forensic Examinations in Criminal Cases”).
The provisions of Article 116 of the CPC distinguish between an expert's explanations and testimony (Parts 2 and 4). The distinction lies in the fact that an expert's explanations are provided after a considerable period of time has elapsed since the expert issued their opinion. For example, an examination was conducted before the trial, and the expert was summoned to court to provide explanations concerning the examination as a whole, its grounds, appointment and conduct.
An examination of the expert, in turn, takes place immediately after the expert has issued their opinion during the proceedings or after the opinion has been read out in court, and concerns the explanation, clarification or supplementation of the opinion (clarification of issues relevant to the case that do not require additional examinations; clarification of methodology and terminology; obtaining information about other facts and circumstances that do not form part of the opinion; and establishing the expert's qualifications) (Article 285 and Part 1 of Article 374 of the CPC).
Any disagreement of the body conducting the criminal proceedings with an expert opinion must be substantiated in a ruling or judgment (Part 3 of Article 116 of the CPC). An additional or repeated examination may be ordered during the pre-trial investigation or trial (Article 287 of the CPC).
An expert opinion obtained as a result of an examination ordered by an unauthorized person or conducted without a formal order, or in violation of other legal requirements (including failure to observe the prescribed sequence for conducting different types of examinations, etc.), cannot be recognized as admissible evidence. When evaluating an expert opinion and identifying discrepancies between its findings and other evidence, the court must resolve such contradictions. Explanations given during an examination by a person who has admitted guilt in the commission of a crime and recorded in the expert opinion must not be recognized as evidence. An expert opinion obtained on the basis of an expert examination of objects received from the body that ordered the examination with the integrity of their packaging, seals or stamps compromised may, depending on the materiality and nature of the violations affecting the reliability of the expert's findings, be recognized as inadmissible evidence (Paragraph 16 of Regulatory Resolution No. 4 of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006, “On Certain Issues Concerning the Evaluation of Evidence in Criminal Cases”).
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the National Academy of Natural Sciences of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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