Commentary on Article 117. Expert Opinion and Testimony of a Specialist of the Criminal Procedure Code of the Republic of Kazakhstan
1. A specialist’s opinion is an official document, prepared in writing in accordance with the requirements of the third part of this Article, which reflects the content of the examination and the conclusions on the questions submitted to the specialist by the person conducting the criminal proceedings or by the parties.
The procedure for ordering an examination, preparing a notification on the impossibility of providing an opinion, the rights and obligations of the suspect, accused, victim and his or her representative, witness, and defence counsel when ordering and conducting an examination, guarantees of the rights and legitimate interests of persons in respect of whom an examination is conducted, the right of participants in the proceedings to be present during the examination, legal requirements for examination objects, the procedure and legal consequences of presenting a specialist’s opinion to the suspect and victim, and the grounds and procedure for obtaining samples for examination shall be established by Chapters 34 and 35 of this Code, taking into account the specific features of examinations conducted by a specialist.
2. After conducting the necessary examinations, the specialist shall prepare a written opinion in his or her own name and certify it with his or her signature.
A written opinion of a specialist prepared by an employee of an authorised division of a law enforcement or special state body of the Republic of Kazakhstan shall be certified by the seal of the said division.
A specialist’s opinion may be prepared in the form of an electronic document.
3. A specialist’s opinion shall indicate: the date of its preparation, the time limits and place of the examination; the details of the investigative action protocol to which the specialist’s opinion is attached; information about the specialist who conducted the examination (surname, first name, patronymic (if any), education, speciality, length of service in the speciality, academic degree and academic title, position held); a note, certified by the specialist’s signature, confirming that the specialist has been warned of criminal liability for knowingly providing a false opinion; the questions submitted to the specialist; the objects examined, their condition, packaging and sealing; the content and results of the examinations, indicating the methods applied; the assessment of the results of the examinations conducted, the substantiation and formulation of conclusions on the questions submitted to the specialist.
4. Materials illustrating the specialist’s opinion (photographic tables, diagrams, graphs, tables and other materials), certified in accordance with the procedure provided for in the second part of this Article, shall be attached to the opinion and constitute an integral part thereof. The objects remaining after the examination, including samples, shall also be attached to the opinion.
5. Oral explanations provided by a specialist shall constitute evidence only insofar as they clarify the opinion previously given by that specialist.
6. A specialist’s testimony consists of information provided by the specialist during an interrogation conducted after receipt of the opinion, for the purpose of explaining or clarifying the opinion given by that specialist.
7. A specialist’s opinion shall not be binding upon the body conducting the criminal proceedings; however, any disagreement with the opinion must be reasoned.
Note. Article 117 was amended by Law of the Republic of Kazakhstan No. 180-VI dated 12 July 2018 (the amendments shall enter into force upon the expiry of ten calendar days after the date of its first official publication).
Understanding and application of the provisions of Part 1 of Article 117 of the CPC are closely connected with the provisions of Article 80 of the CPC, which establishes, among other rights of a specialist, the right to conduct an examination upon the appointment or with the permission of the body conducting the criminal proceedings and to prepare an opinion.
The procedural form of conducting an examination by a specialist is, in fact, regulated by the provisions of Chapter 34, “Obtaining Samples”, and Chapter 35, “Forensic Examination”, of the CPC, taking into account the specific features of this level of examination and the methods applied by the specialist.
A specialist’s opinion is, first and foremost, a written document, including one prepared in electronic format, the procedure for certification of which is analogous to the procedure for certification of an expert’s opinion (Parts 1—2 of Article 117, Part 1 of Article 283 of the CPC).
A specialist’s opinion, just like an expert’s opinion, has a specific form and content, the necessary attachments, and also constitutes an integral part of the protocol of the investigative action, following which the specialist’s examination was ordered (Parts 2—4 of Article 117 of the CPC).
A specialist’s opinion may also constitute an independent procedural document, for example, one prepared on the basis of a request from a lawyer.
The nature of the oral explanations and testimony provided by a specialist concerning his or her opinion (Parts 5—6 of Article 117 of the CPC) is of the same legal nature as the oral explanations or testimony provided by an expert concerning his or her opinion (see the commentary on Parts 2 and 4 of Article 116 of the CPC).
Since a specialist’s opinion constitutes an independent source of evidence in a case, any disagreement with it during pre-trial investigation or the main court hearing must be reasoned (Part 7 of Article 117 of the CPC). For this purpose, the body conducting the criminal proceedings shall be entitled, on its own initiative or upon a motion of the parties, to order a repeated or additional examination or an expert examination.
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan. Author: Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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