Commentary on Article 79. Expert of the Criminal Procedure Code of the Republic of Kazakhstan

1. Any person who is not interested in the case and possesses special scientific knowledge may be summoned as an expert. Other requirements imposed on a person who may be entrusted with conducting an expert examination are established by Part One of Article 273 of this Code.

2. The summoning of an expert, the appointment and conduct of an expert examination shall be carried out in accordance with the procedure provided for in Chapter 35, as well as Article 373 of this Code.

3. An expert shall have the right to:

1) familiarize himself or herself with the case materials relating to the subject matter of the expert examination;

2) submit motions requesting the provision of additional materials necessary for giving an opinion, as well as the adoption of security measures;

3) participate, with the permission of the body conducting the criminal proceedings, in procedural actions and court hearings and ask questions relating to the subject matter of the expert examination to persons participating therein;

4) familiarize himself or herself with the record of the procedural action in which he or she participated, as well as with the relevant part of the court hearing record, and make comments to be entered into the records concerning the completeness and accuracy of the recording of his or her actions and statements;

5) with the agreement of the body that appointed the expert examination, provide, within the limits of his or her competence, an opinion on circumstances identified during the forensic examination that are relevant to the case but fall outside the scope of the questions contained in the ruling appointing the forensic examination;

6) submit an opinion and give testimony in his or her native language or in a language that he or she speaks; use the free assistance of an interpreter; challenge the interpreter;

7) appeal against decisions and actions of the body conducting the criminal proceedings and other persons participating in the proceedings that infringe upon his or her rights during the conduct of the expert examination;

8) receive reimbursement of expenses incurred in connection with conducting the expert examination and remuneration for the work performed, provided that conducting the forensic examination is not part of his or her official duties.

4. An expert shall not have the right to:

1) conduct negotiations with participants in the proceedings on matters relating to the conduct of the expert examination without the knowledge of the body conducting the criminal proceedings;

2) independently collect materials for examination;

3) conduct examinations that may result in the complete or partial destruction of objects or a change in their external appearance or essential properties, unless special permission has been granted by the body that appointed the expert examination.

5. An expert shall be obliged to:

1) appear when summoned by the body conducting the criminal proceedings;

2) conduct a comprehensive, complete and objective examination of the objects submitted to him or her and provide a reasoned and objective written opinion on the questions raised;

3) refuse to provide an opinion and prepare a reasoned written notification stating the impossibility of providing an opinion and send it to the body conducting the criminal proceedings in the cases provided for in Article 284 of this Code;

4) give testimony on matters relating to the examination conducted and the opinion provided;

5) ensure the preservation of the objects submitted for examination;

6) not disclose information concerning the circumstances of the case or other information that becomes known to him or her in connection with conducting the expert examination;

7) submit to the body that appointed the expert examination an estimate of expenses and a report on the expenses incurred in connection with conducting the expert examination.

6. An expert shall bear criminal liability established by law for knowingly providing a false opinion.

7. An expert who is an employee of a forensic examination body shall be deemed, by virtue of the nature of his or her professional activities, to be familiar with his or her rights and obligations and to have been warned of criminal liability for knowingly providing a false opinion.

An expert is a person who is not interested in the case and possesses systematic special scientific knowledge in a particular field of human activity (medicine, technology, agriculture, etc.).

In paragraph 1 of Regulatory Resolution No. 16 of the Supreme Court of the Republic of Kazakhstan dated November 26, 2004, “On Forensic Examination in Criminal Cases,” the Supreme Court of the Republic of Kazakhstan explained that, in accordance with Article 270 of the CPC, an expert examination, as a specific procedural form of proving a criminal case, is appointed where factual data relevant to the case can be obtained only as a result of an examination of the case materials conducted by an expert on the basis of special scientific knowledge (see also paragraph 2 of the Rules for the Organization and Conduct of Forensic Examinations and Studies in Forensic Examination Bodies, approved by Order No. 484 of the Minister of Justice of the Republic of Kazakhstan dated April 27, 2017).

The expression “special scientific knowledge” was established in the Law dated February 10, 2017, “On Forensic Expert Activity,” and is interpreted as an area of special knowledge whose content consists of scientific knowledge implemented in the methodologies of forensic examinations (paragraph 1 of Article 1). A forensic examination methodology itself is a system of methods applied when examining forensic examination objects in order to establish factual data relating to the subject matter of the forensic examination (see subparagraph 6 of Article 1 of the Law “On Forensic Expert Activity”; Order No. 331 of the Minister of Justice of the Republic of Kazakhstan dated March 30, 2017, “On Approval of the Rules for the Formation, Maintenance and Use of the State Register of Forensic Examination Methodologies of the Republic of Kazakhstan”); Order No. 330 of the Minister of Justice of the Republic of Kazakhstan dated March 30, 2017, “On Approval of the Rules for the Development, Testing and Implementation of Forensic Examination Methodologies.”

Other requirements for conducting a forensic examination, referred to in the second sentence of Part 1 of Article 79 of the CPC, consist in the fact that it may be entrusted only to:

— employees of forensic examination bodies of the Forensic Examination Center of the Ministry of Justice and the Center for Forensic Medicine of the Ministry of Healthcare (see Decree No. 3465 of the President of the Republic of Kazakhstan dated April 22, 1997, “On Measures for Further Reform of the Law Enforcement Agencies System of the Republic of Kazakhstan”; Resolution No. 1245 of the Government of the Republic of Kazakhstan dated August 11, 1997, “On the Establishment of the State Institution ‘Forensic Examination Center of the Ministry of Justice of the Republic of Kazakhstan’”; Resolution No. 1120 of the Government of the Republic of Kazakhstan dated October 28, 2004, “Issues of the Ministry of Justice of the Republic of Kazakhstan”; Order No. 306 of the Minister of Justice of the Republic of Kazakhstan dated March 27, 2017, “On Approval of the List of Types of Forensic Examinations Conducted by Forensic Examination Bodies and Expert Specialties for Which Qualifications Are Awarded by the Ministry of Justice of the Republic of Kazakhstan”; Order No. 335 of the Minister of Justice of the Republic of Kazakhstan dated March 30, 2017, “On Approval of the Rules for Conducting Examinations for the Award of Forensic Expert Qualifications”; Resolution No. 1352 of the Government of the Republic of Kazakhstan dated September 11, 2009, “On the Reorganization of Certain Subordinate Organizations of the Ministry of Healthcare of the Republic of Kazakhstan,” etc.);

— individuals engaged in forensic expert activity on the basis of a license (see Resolution No. 790 of the Government of the Republic of Kazakhstan dated September 26, 2015, “On Certain Issues of Licensing Advocacy and Notarial Activities”; Resolution No. 669 of the Government of the Republic of Kazakhstan dated October 23, 2018, “On Certain Issues of Licensing Medical and Pharmaceutical Activities”); and, on a one-time basis, other persons (apart from the persons listed above) (author’s note — M.K.), in the manner and under the conditions provided for by law (Part 1 of Article 273 of the CPC).

The conduct of an expert examination may be entrusted on a one-time basis in the following cases: 1) when a forensic examination is appointed that is not included in the list of types of forensic examinations established by the Ministry of Justice of the Republic of Kazakhstan; 2) when a reasoned challenge to forensic experts of the relevant specialty who are employees of forensic examination bodies, as well as persons engaged in forensic expert activity on the basis of a license, is upheld, or when a reasoned decision is made to remove the forensic examination body as a whole from conducting the forensic examination; 3) when a forensic expert from a foreign state is engaged (subparagraph 3 of paragraph 1, paragraph 3 of Article 19, Article 62 of the Law “On Forensic Expert Activity”).

3. Since the commentary to Article 79 of the CPC concerns the procedural status of an expert in criminal proceedings, the issues of summoning an expert, appointing an expert examination and conducting such examination will be commented upon with reference to the provisions of Chapter 35 of the CPC, “Forensic Examination,” and the provisions of Article 373, “Expert Examination in Court Proceedings,” and Article 374, “Examination of an Expert.”

4. Like all other participants in criminal proceedings, an expert is the holder of a set of rights that enable him or her to effectively fulfill his or her purpose in a criminal case. Part 2 establishes eight key rights of an expert when conducting an expert examination. Let us briefly consider some of them.

Thus, the rights of an expert provided for in subparagraphs 1–8 of Part 3 of Article 79 of the CPC ensure the legality and validity of his or her opinion in the case, since, in various forms, they enable the expert to better understand the contents of the criminal case materials and apply the appropriate methodologies for examining forensic examination objects. For example, the rule contained in subparagraph 1 of Part 3 of Article 79 of the CPC grants the expert access to the criminal case materials insofar as they relate to the subject matter of the expert examination and thereby excludes the possibility of providing an opinion containing legal conclusions, as such conclusions fall outside the expert's competence.

Among the other rights of an expert during the conduct of an expert examination is the right to indicate in the opinion circumstances established by the expert that are relevant to the case, even if the body conducting the criminal proceedings has not asked questions concerning them (paragraph 5 of Article 79). However, the expert may exercise this right only with the agreement of the body that appointed the expert examination.

During pre-trial investigation, an expert has the right to appeal to the investigating judge, prosecutor, head of the investigative department or head of the inquiry body against decisions and actions of the body conducting the criminal proceedings and other persons that infringe upon the expert's rights during the conduct of the expert examination (subparagraph 7 of Part 3 of Article 79 of the CPC; Articles 276–278 of the CPC).

The law guarantees an expert reimbursement of expenses related to conducting the expert examination, as well as payment for his or her work. These matters are regulated by the provisions of Chapter 21 of the CPC, “Payment for Work and Reimbursement of Expenses Incurred During Criminal Proceedings” (Articles 175–176), and Chapter 22 of the CPC, “Procedural Costs” (Articles 177–178) (see also paragraphs 1, 3–8, 16–17 of Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated June 29, 2018, “On the Recovery of Procedural Costs in Criminal Cases”). Where an expert examination is conducted at the request of defense counsel or a representative of the victim, reimbursement of expenses shall be borne by the person in whose interests the examination was conducted (Part 5 of Article 272 of the CPC).

Part 4 of Article 79 of the CPC also establishes three important restrictions (not conducting negotiations with participants in criminal proceedings on matters relating to the expert examination, not independently collecting materials during the examination, and exercising care when handling the objects of the expert examination). Failure by the expert to comply with these restrictions may affect the objectivity of the expert examination and result in violations of the rights of the parties to the criminal proceedings. All the actions listed in the provisions of Part 4 of Article 79 of the CPC may be performed by the expert only with the knowledge and permission of the body conducting the criminal proceedings, or that body may require the expert to perform them in the interests of ensuring the quality of the expert examination. In particular, the law regulates the participation of parties to the proceedings during the conduct of an expert examination, the obtaining of samples by the expert as part of the expert examination, as well as the handling of expert examination objects (Articles 263, 278 and 280 of the CPC).

The existence of rights presupposes corresponding obligations, which form part of the expert's legal capacity. They are regulated by Part 5 of Article 79 of the CPC and comprise seven main obligations that meet the needs of criminal proceedings and expert practice. These obligations direct the expert towards conducting a proper expert examination and submitting a comprehensive and clear opinion containing complete answers to the questions raised by the body conducting the criminal proceedings. Effective performance of these obligations, combined with the lawful and well-founded exercise of rights during the conduct of the expert examination, prevents the subsequent appointment of additional or repeated expert examinations. The expert's primary obligations continue to include the timely provision of an opinion and ensuring the preservation of the objects of the expert examination (see Order No. 305 of the Minister of Justice of the Republic of Kazakhstan dated March 27, 2017, “On Approval of the Rules for Handling Forensic Examination Objects”).

An expert's opinion is prepared on questions falling within the subject matter of proof in a criminal case (Article 113 of the CPC), constitutes one of the procedural means of collecting evidence in the case and is regarded as an independent source of evidence in the case (Part 2 of Article 111 of the CPC). A violation of the procedure for conducting an expert examination in a case (conducting an expert examination by a person who is not authorized to do so; conducting an expert examination with a substantial violation of the prescribed procedure; using methods that contradict modern scientific knowledge) entails recognition of the expert's opinion as having no evidentiary value (subparagraphs 3, 5 and 7 of Part 3 of Article 112 of the CPC).

The objectivity of an expert, his or her lack of interest in the criminal case, and professional qualities (competence) in conducting an expert examination are protected by the provisions of the CPC and the Criminal Code. For example, if an expert's lack of competence is established and other circumstances that preclude his or her participation in the case are identified, the expert shall be disqualified by the body conducting the criminal proceedings (Article 93 of the CPC). Bribery or coercion to provide a knowingly false opinion entails criminal liability under Article 422 of the Criminal Code. The provision of a knowingly false opinion by an expert entails his or her criminal liability under Article 420 of the Criminal Code and constitutes grounds for reopening the case on the basis of newly discovered circumstances in accordance with the procedure established by the CPC (subparagraph 1 of Part 2 of Article 499 of the CPC).

Experts summoned to bodies conducting criminal proceedings to provide opinions, explanations and testimony concerning such opinions, to participate in investigative actions and in court proceedings, have the right to receive remuneration for the work performed in connection with the criminal case and reimbursement of expenses incurred by them in criminal proceedings (see the commentary to the provisions of Part 4 of Article 71 and Articles 175–176, 177–178 of the CPC; Resolution of the Government of the Republic of Kazakhstan dated October 9, 2014, “On Certain Issues of Reimbursement of Expenses Incurred by Persons During Criminal Proceedings”; paragraphs 1, 3–8, 16–17 of Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated June 29, 2018, “On the Recovery of Procedural Costs in Criminal Cases”).

Commentary of 2020 to the Criminal Procedure Code of the Republic of Kazakhstan by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honored Worker of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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