Commentary to article 773. Conclusion and testimony of an expert and specialist The Code of the Republic of Kazakhstan on Administrative Offences
1. An expert's opinion is a written conclusion on the issues raised by the judge, the body (official) in charge of the administrative offense case, based on the results of a study of the case materials, including physical evidence and samples, conducted using special scientific knowledge. The conclusion also indicates the methods used by the expert in the study, the rationale for the answers to the questions raised and the circumstances relevant to the case, established on the initiative of the expert himself.
2. The conclusion is drawn up by the expert(s) after conducting the research, taking into account his results on his own behalf, certified by his (their) signature and personal seal. In the case of an expert examination by an expert body, the expert's signature is certified with the seal of the specified body.
3. The expert's conclusion must specify: the date of its execution, the time and place of the examination; the grounds for the forensic examination; information about the judge, the body (official) in charge of the administrative offense case; information about the body of the forensic examination and (or) the expert (experts) entrusted with the examination (last name, first name, patronymic (if any), education, specialty, work experience in the specialty, academic degree and academic title, position held); a note certified by the expert's signature stating that he has been warned of criminal liability for knowingly giving a false conclusion in court; questions posed to the expert(s); information about the participants in the process who were present during the examination and their explanations; objects; content and results of research indicating the methods used; evaluation of the results of the conducted research, justification and formulation of conclusions on the issues raised by the expert(s).
4. The conclusion must contain a justification for the impossibility of answering all or some of the questions raised, if the circumstances specified in part thirteen of Article 772 of this Code are revealed during the study.
5. Expert testimony is information provided by him during the consideration of an administrative offense case in order to clarify or clarify the conclusion submitted by him in accordance with the requirements of Article 757 of this Code.
6. A specialist's opinion is a written opinion on the issues put to a specialist by an authorized official conducting proceedings on an administrative offense case, or by the parties, the answers to which do not require conducting an appropriate study.
7. The expert's conclusion consists of introductory, descriptive parts and conclusions. The introductory part should indicate: date, place, time of giving the conclusion; the official who commissioned the special study; information about the specialist (surname, first name, patronymic (if any), education, specialty, work experience in the specialty, academic degree, academic title, position). The descriptive part contains questions posed to the specialist, objects, materials, documents submitted to the specialist for giving an opinion, and persons present during the study. The conclusions reflect the specialist's answers to the questions posed and their scientific justification.
8. Testimony of a specialist is information provided by him during the consideration of an administrative offense case, about circumstances requiring special knowledge, as well as an explanation of his opinion in accordance with the requirements of Article 756 of this Code.
9. Materials illustrating the expert's or specialist's opinion (photo tables, diagrams, graphs, tables and other materials), certified in accordance with the procedure provided for in part two of this Article, are attached to the opinion and are an integral part of it. The remaining objects, including samples, should also be attached to the conclusion.
10. The opinion of an expert or specialist is not mandatory for the court, body (official) who are investigating the case of an administrative offense, however, their disagreement with the conclusion must be motivated.
Part 1. The conclusion and testimony of an expert and specialist are one of the types of evidence in administrative proceedings (art. 765 of the Administrative Code), which is subject to verification and evaluation like any other evidence in the case of an administrative offense.
The conclusion and testimony of an expert and specialist has no pre-determined force or advantages over other evidence (art. 784 of the Administrative Code).
According to Article 1 of the Law of the Republic of Kazakhstan dated February 10, 2017 "On Forensic expert activity", an expert's opinion is a written document drawn up in accordance with the requirements of the legislation of the Republic of Kazakhstan, reflecting the progress and results of a forensic expert study.
According to Part 1 of the commented article, an expert's opinion is a written conclusion on the issues put to him by the judge, the body (official) in charge of the administrative offense case, based on the results of a study of the case materials, including physical evidence and samples, conducted using special scientific knowledge.
The conclusion indicates the justification used by the expert in the study of the answers to the questions raised and the circumstances relevant to the case, established on the initiative of the expert himself. At the same time, the forensic expert is independent in the selection of scientific and technical means, methods and research methods, the admissibility of which is determined by law. The forensic expert gives an opinion based on the results of the conducted research in accordance with his special scientific knowledge.
Part 2. The results of the examination shall be presented in writing and formalized in accordance with the Criminal Procedure Code of the Republic of Kazakhstan, the Civil Procedure Code of the Republic of Kazakhstan, the Code of the Republic of Kazakhstan on Administrative Offenses and the Law of the Republic of Kazakhstan "On Forensic Expertise".
The expert's conclusion, the message about the impossibility to give an opinion, is signed by the expert or the expert commission that conducted the examination, the signatures are certified by the seal of the judicial examination body.
If an expert gives an opinion on some of the issues specified in the resolution or the ruling on the appointment of an expert examination, and there are grounds for writing a report on the inability to give an opinion on others, a single document is drawn up – the Expert's Opinion.
Part 3. In its content and form, the expert's opinion reflects the procedural status of the examination (individual, additional, repeated, commission, complex), the procedure for passing the received materials, the research process, the results and conclusions obtained.
Regardless of the procedural status of the examination (individual, additional, repeated, commission, complex), the expert's opinion consists of an introductory, research, synthesizing part and conclusions.
The introductory part of the expert's report reflects the organizational and managerial aspect of the conducted expert research. The introductory part of the conclusion states:
- date of receipt, place of examination;
- the body and the official who appointed the examination;
- a list of research objects (physical evidence, samples for expert examination, their condition).
When conducting forensic medical examinations, it is necessary to specify:
- during the examination of the corpse — last name, first name, patronymic (if any) - (hereinafter - full name), age of the deceased (if known);
- during the examination of victims, accused and other persons - full name, age, place of residence, data of the identity document;
-during the examination of the case materials and the examination of physical evidence - the name and number of the criminal, administrative or civil case, the number of volumes, sheets of the case, the list of objects and samples submitted for examination;
- the method of delivery of the objects received for the study;
- information about the persons allowed by the body that appointed the examination to be present during the examination (surname, initials, procedural status);
- questions submitted for expert approval;
- if there are several questions, the expert groups them, stating them in the order that ensures the most appropriate order of research, but without changing their semantic content.;
- if the question in the resolution or definition is not formulated in accordance with the accepted recommendations, but its meaning is clear to the expert, then after giving the question in its original wording, the expert explains how this question is understood by him in accordance with his special scientific knowledge.;
- notes in which the expert indicates the impossibility of answering a question that requires a legal assessment of factual data and circumstances or is not within his competence; in accordance with Part 2 of Article 757 of the Code of Administrative Offences of the Republic of Kazakhstan, formulates a question, the answer to which will contribute to the establishment of circumstances essential to the case (in agreement with the authority (the person who appointed the examination); information about the request for additional materials, indicating the date of his application and receipt of the response, the result of its consideration; information on the application for permission to modify or destroy the research object, indicating the date of its application and receipt of the response, the result of its consideration; information on the suspension of the examination; an indication of the mark of the received documents with the appropriate stamps of the institution;
- information about the expert(s): full name, education, academic degree and title, position, expert specialty, experience of expert work;
- an instruction to warn the expert about criminal liability for giving a deliberately false conclusion.
When conducting an additional examination, in the introductory part of the expert's conclusion, in addition to the information specified in paragraph 20 of the Rules, it is noted that the examination is additional, information about the previous examination is provided: the number and date of issue of the opinion, the surname and initials of the expert, the name of the expert institution, the questions raised for permission, the conclusions given on them and the reasons appointment of additional expertise.
When conducting a re-examination, in the introductory part of the expert opinion, in addition to the information specified in paragraph 20 of the Rules, it is noted that the examination is repeated, information about the previous examination is provided: the number and date of issue of the opinion, the surname and initials of the expert, the name of the expert institution, the conclusions of the previous examination and the reasons for the appointment of a re-examination.
When conducting a commission examination, the introductory part of the expert opinion notes that the examination is a commission examination and indicates the place of its conduct (one or more laboratories, information about a licensed expert, an expert from a foreign country).
When conducting a comprehensive examination, in the introductory part of the expert's conclusion, in addition to the information specified in paragraph 20 of the Rules, it is noted that the examination is comprehensive, the place of its conduct is indicated (one or more divisions, institutions, information about the licensed expert, an expert from a foreign country).
The research part of the expert's report outlines the entire research process and its results, and provides scientific justification for the established factual data and circumstances.
The research part consists of several sections, the number and specifics of which are determined by the specifics of the expert specialty, the methodology of studying specific objects and the specifics of the object itself.
The research part specifies:
- the circumstances of the case that are essential for giving an opinion and accepted by the expert as initial data;
- a list of normative legal, methodological and reference literature used in the examination process;
- description of the condition of the objects of expert research, their packaging;
- the purpose, conditions and results of the expert examination, experiments and obtaining samples for expert examination;
- a description of the expert research methods used, the technical conditions of their application, and the results obtained;
- links to regulatory and reference materials, computer databases, calculation programs, as well as links to illustrations, appendices and necessary explanations to them;
- the results of investigative actions, if they are relevant in substantiating the conclusions;
- expert assessment of the individual stages of the study and all the results obtained as a whole as the basis for the formulation of conclusions.
When designing the illustrative material, it is allowed to place illustrations according to the text of the expert opinion. At the same time, the research part of the conclusion provides a brief description of the devices used, the software, the mode of obtaining and printing images, indicating the name and volume of the file containing the image.
The research part of the report indicates all the actions that were performed with objects and samples. If some of the questions raised could not be resolved, the reasons are set out in the research part.
The research part is presented in terms and concepts that do not require additional clarification and interpretation for people without expert knowledge.
The research methodology is described in such a way that it is possible to assess the completeness of its application by an expert, and if necessary, to verify the correctness of the conclusions, all studies could be repeated.
In the course of the examination, along with the approved methods, information sources are also used that are mandatory for use in the territory of the Republic of Kazakhstan, in particular: regulatory legal acts and legal acts.
If necessary, information databases on the Internet, as well as specialized software products, can also be used during examinations.
In the research part of the conclusion of the additional examination, the expert may not state the progress and results of the research conducted earlier, but rather make a reference to the previous examination, if the same methods and means were used and the same results were achieved during the additional examination as during the previous examination.
In the research part of the conclusion of the comprehensive examination, the research of each expert is presented separately. The results of the evaluation of individual studies and the partial conclusions drawn on this basis are also presented separately (an intermediate synthesizing part).
A joint assessment of the results of a comprehensive study is presented at the end of the research part of the conclusion, immediately before the conclusions in the synthesizing part. When conducting a comprehensive examination, one general conclusion is drawn up (or a message about the inability to give a conclusion). The expert opinion notes what studies each expert has conducted and what data they have established. Each expert signs the general conclusion or that part of it that reflects the course and results of the research conducted by him personally. In the research part of the conclusion of the commission examination, the experts, having come to a common opinion, draw up a general conclusion.
In case of disagreement, each expert or group of experts draws up separate expert opinions (or reports of inability to give an opinion). In the research part of the re-examination report, the experts, having come to a common opinion, draw up a general conclusion. In case of disagreement, each expert signs his conclusion.
The synthesizing part of the conclusion reflects the overall outcome of the entire study and is allocated to a separate section in the following cases::
- research of a significant number of objects;
- using a set of methods, complex objects, the study of which reaches the level of solving the situation;
- comprehensive, commission and repeated examinations.
The conclusions of the expert's report provide answers to the questions posed to the expert. Each of the questions raised is answered on its merits or it is indicated that it cannot be resolved.
Conclusions are formed in such a way that their semantic content corresponds to the tasks (questions) set and does not allow for different interpretations.
If the conclusion cannot be formulated without a detailed description of the research results set out in the research part and containing an exhaustive answer to the question posed, a reference to this part of the conclusion is allowed.
The conclusions of the commission or re-examination, if the experts agree, are signed by the entire commission of experts. In case of disagreement in the commission on the issue of evaluating the results of any point of study of objects, this point of conclusions is highlighted and signed by the expert alone.
The conclusions of the comprehensive examination, following from the results obtained in accordance with the specifics of the expert specialty within which the study was conducted, are signed by each expert individually.
If the course of the research and the results obtained through the use of knowledge from various expert specialties do not contradict each other and serve as the basis for forming a single conclusion revealing the mechanism of the event, then this single conclusion is signed by the entire commission of experts, after the conclusions for each area of research have been outlined.
Upon completion of the study, the objects (documents, protocols, diagrams), as well as other case materials containing the initial data, with the exception of documents in accordance with the legislation of the Republic of Kazakhstan that do not allow extraneous marks (passport, identity card, securities, documents marked "secret", "for official use"), an impression of the stamp of the territorial division is applied. The objects presented as samples for expert research are stamped with the stamp "ULGI".
If, prior to conducting the study, the expert becomes convinced that the questions posed to him go beyond his special knowledge, or the materials presented to him are unsuitable or insufficient to give an opinion and cannot be completed, or the state of science and expert practice does not allow answering the questions raised, he draws up a reasoned message about the impossibility of giving an opinion and sends it to the judge, to the body (official).
Part 4. The message about the inability to give a conclusion consists of three parts: introductory, motivational and final. The introductory part contains the same information as in the expert opinion. The reasoning part sets out in detail the reasons for the inability to provide an opinion on each issue. In the final part, it is indicated that it is impossible to give an answer to each question posed to the expert.
Upon completion of the examination, the expert's conclusion (a message stating that it is impossible to give an opinion), the objects of the study and the samples must be handed over to the office or storage room, which is noted in the Journal of Registration of materials received for the conduct of forensic examinations in accordance with the forms established by legislation.
Expert conclusions on certainty are divided into categorical and probable (presumptive).
A categorical conclusion is a reliable conclusion about a fact, regardless of the conditions of its existence. It can be categorically positive or categorically negative. For example, that the shoe mark at the scene was formed by the left shoe of citizen M. (an example of a categorically positive conclusion).
A probable conclusion is an expert's reasonable assumption (hypothesis) about the fact being established. It usually reflects an incomplete inner psychological conviction of the reliability of arguments, an average proof of fact, and the impossibility of achieving complete knowledge. Probable conclusions admit the possibility of the existence of a fact, but they do not exclude an absolutely different (opposite) conclusion.
In relation to an established fact, an expert's categorical or probable conclusion can be affirmative (positive) and negative when the existence of a fact is denied, about which a certain question is posed to the expert. By the nature of the relationship between the conclusion and its basis, conclusions are divided into conditional ("if ... then...") and unconditional.
An unconditional conclusion is an admission of a fact that is not limited by any conditions. Conditional conclusion means the recognition of a fact, depending on certain circumstances, the reliability of previous knowledge, the evidence of other facts, for example, the text of the document was not made on this laser printer, provided that the printer has not been repaired. Such a conclusion can also be expressed in a categorical and probable form.
The expert formulates an alternative conclusion if, as a result of the research, he failed to come to a single solution to the problem. An alternative conclusion presupposes the existence of any of the mutually exclusive facts listed in it. Such a conclusion is a strictly separative judgment, indicating the possibility of the existence of any of the mutually exclusive facts listed in it, the need for the investigator (court) to choose one of them and recognize it as having actually occurred.
The judicial decision in the case can only be based on categorical conclusions. Only they have evidentiary value.
A conclusion with categorical conclusions serves as evidence in the case. A probable conclusion cannot be proof, but only allows you to get orientation, search information, and suggest versions that need to be verified.
Part 5. Expert testimony is an independent source of evidence.
The expert's testimony is information that clarifies or clarifies the conclusion given by him and is limited to the subject of his examination. He may be questioned if the report is presented with unclear, vague, vague or indefinite wording. A prerequisite is that an expert is interviewed only after submitting an opinion.
Part 6. A specialist's opinion is a written opinion on issues raised by a specialist, an authorized official conducting proceedings on an administrative offense, or by the parties, the answers to which do not require conducting an appropriate study.
The research results are presented in writing and formalized in the form of a "Specialist opinion".
The expert's report is drawn up on behalf of the specialist and is certified by the seal of the forensic examination authority, in which the expert is signed as a specialist.
Part 7. The expert's conclusion consists of three parts: introductory, research and conclusions. The introductory part contains the same information as in the expert opinion specified in paragraph 20 of the Rules.
The research part describes the research process and its results, and substantiates the established facts. A more concise description of the research process is allowed, as opposed to its presentation in the expert opinion.
The conclusions of the expert's report provide answers to the questions raised. Each of the questions raised is answered on its merits or it is indicated that it cannot be resolved. The semantic content of the conclusions should correspond to the questions posed.
The expert's conclusion may be accompanied by text appendices or illustrative material in the form of photo tables, photocopies, drawings, tables, diagrams, graphs illustrating the progress of the study and the results obtained. The illustrations are signed by a specialist and stamped.
Part 8. Testimony of a specialist – information provided by him during the consideration of an administrative offense case, about circumstances requiring special knowledge, as well as an explanation of his opinion in accordance with the requirements of art. 756 of the Administrative Code.
Just like the testimony of an expert, the testimony of a specialist is an independent source of evidence and is information that clarifies or clarifies his conclusion and is limited to the subject of his research. A specialist may be interviewed if an opinion is presented that has unclear, vague, vague or indefinite wording. An obligatory condition is to conduct an interrogation after submitting a conclusion.
Part 9. Materials illustrating the expert's conclusion (photo tables, diagrams, graphs, diagrams, slides) are attached to the conclusion and are an integral part of it. All materials are signed by an expert or a commission of experts who conducted the examination, the signatures are certified by the seal of the judicial examination body.
The expert's conclusion is accompanied by a cover letter from the head of the territorial subdivision to the body (person) who appointed the examination, which contains information on the date of the examination, the procedural costs, the number of pages of the text of the conclusion and illustrative material and the return of the research objects.
Part 10. The conclusions of an expert or specialist are not binding on the court, body (official) in charge of the case of an administrative offense, since they, when evaluating evidence, are not bound by the assessment of evidence given by the expert or specialist. They evaluate evidence independently of outside influence, based on the totality of available evidence, each of which has no pre-determined force, based on a comprehensive, complete and objective examination of the evidence available in the case.
Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:
Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);
Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;
Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);
Alexander Vladimirovich Karpekin, Candidate of Law, Associate Professor – chapter 13 (in collaboration with A.M. Zhusipbekova);
Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;
Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;
Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;
Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);
Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);
Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;
Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;
Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);
Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;
Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;
Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);
Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;
Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.
Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).
Date of amendment of the act: 01.01.2020 Date of adoption of the act: 01.01.2020 Place of acceptance: 100050000000 Authority that adopted the act: 103001000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 5 Status of the act: new Sphere of legal relations: 029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act: COMM / CODE Legal force: 1900 Language of the Act: rus
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