Comments on article 87. The procedure for conducting an expert examination of the Civil Procedure Code of the Republic of Kazakhstan

1. An expert examination is carried out in court or outside court, depending on the nature of the study or the impossibility or difficulty of delivering objects for research at a court hearing.

2. When conducting an expert examination, its objects, with the permission of the court that appointed the expert examination, may be damaged or used only to the extent necessary for conducting research and giving an opinion. The specified permission must be contained in a ruling on the appointment of a forensic examination or in a reasoned ruling on the satisfaction of a judicial expert's request or on a partial refusal to satisfy it.

3. The reliability and admissibility of the objects of expert research is guaranteed by the court.

4. Objects of expert research, if their dimensions and properties allow it, are transferred to the expert in packaged and sealed form. In all other cases, the court that ordered the examination must ensure that the expert is delivered to the location of the research objects, unhindered access to them, and the conditions necessary for conducting the study.

5. Persons participating in the case have the right to be present during the examination, except in cases where such presence during the examination outside the court may interfere with the normal work of experts. If the court grants a request for the presence of persons participating in the case during the examination, the said persons shall be notified of the place and time of the examination. The non-appearance of the notified persons does not prevent the examination.

6. If the persons participating in the case are present during the examination outside the court, the mandatory participation of the bailiff is determined by the court.

7. When assigning an expert examination to a judicial examination body, the court sends a ruling on the appointment of an expert examination and the necessary materials to its head. The examination is carried out by the employee of the judicial examination body specified in the definition. If a specific expert is not specified in the ruling on the appointment of an expert examination, his choice is carried out by the head of the judicial examination body, which he informs the court that appointed the expert examination.

8. The head of the judicial examination body has the right:1) indicating the reasons, return to the court without execution the ruling on the appointment of an expert examination, the objects submitted for its production in cases where: this body of forensic expertise does not have an expert with the necessary special scientific knowledge; the material and technical base and conditions of this body of forensic expertise do not allow solving specific expert tasks; questions posed to as an expert, they go beyond his competence; the materials for the examination are submitted in violation of the requirements provided for by this Code; 2) apply to the court for inclusion in the commission of judicial experts of persons who do not work in this body of judicial expertise, if their special scientific knowledge is necessary to give an opinion; 3) submit a reasoned request for an extension of the term before the court that appointed the forensic examination. conducting a forensic examination.The head of the judicial examination body also has other rights., provided for by the Law of the Republic of Kazakhstan "On Forensic expertise in the Republic of Kazakhstan".

9. The head of the judicial examination body is obliged to:1) upon receipt of a ruling on the appointment of a forensic examination and research objects, entrust the proceedings to a specific judicial expert or a commission of judicial experts of this body of judicial expertise, taking into account the requirements of the law; 2) without violating the principle of independence of the judicial expert, ensure control over compliance with the deadline for conducting a forensic examination, the comprehensiveness, completeness and objectivity of the research conducted, ensuring the safety of judicial objects expert examination; 3) not to disclose information, which became known to him in connection with the organization of the forensic examination.

10. If an expert examination is supposed to be entrusted to a person who is not an employee of the judicial examination body, the court, before issuing a ruling on its appointment, must verify his identity and the absence of grounds for challenging the expert provided for in Article 39 of this Code.

11. Reimbursement of expenses related to the examination, as well as remuneration for the expert's work, shall be made according to the rules established by Articles 110 and 111 of this Code.This article regulates the procedure for conducting an expert examination - the place of the expert examination; the procedure for resolving issues arising during the examination.; the rights and obligations of the persons involved in the case related to their presence during the examination; the rights and obligations of the head of the judicial examination body; other issues related to the examination.1. The first part of this article provides for the place of examination - in court or out of court. The location of the examination is determined by the nature of the expert study, as well as the impossibility or difficulty of delivering objects of expert study to the court (bulky items, real estate, etc.).

2. During the examination, the objects of research may be completely or partially destroyed, or their appearance or basic properties may be changed. Permission for such actions is given by the court that appointed the expert examination, which should be indicated in the court's ruling on the appointment of an expert examination (part nine of Article 82 of the CPC). The rule established by the second part of this article on possible damage or use of examination objects is aimed only to the extent necessary at maximizing the preservation of examination objects and their subsequent return to the person who provided the specified objects, which are of certain value to this person.Permission for the possible complete or partial destruction of objects, changing their appearance or basic properties during the study should be contained in the definition on the appointment of a forensic examination (part nine of Article 82 of the CPC). If such permission is not specified in the court ruling, and the expert needs to destroy or damage the research object in order to carry out the examination, or there is a possibility of such actions, the expert applies to the court that ordered the examination. The examination of the expert's petition is carried out in a court session, which is notified to the persons participating in the case. Based on the results of consideration of the expert's petition, the court issues a ruling on granting the petition and granting permission to destroy or damage the research object. In the case of partial satisfaction of the expert's request, the operative part of the court's ruling specifies in detail which objects of research the court authorizes to be destroyed or damaged. The court refuses to satisfy the rest of the petition. If such a permit has not been obtained, the expert is not entitled to conduct research that could lead to the complete or partial destruction of objects or a change in their appearance or basic properties (subparagraph 3) of paragraph 2 of Article 12 of the Law on SED).3. To ensure the reliability and admissibility of the objects of expert examination, the court finds out from the person providing the specified objects (objects, samples, samples, etc.) the circumstances determining the relevance and admissibility of the provided object (see commentary to the fourth part of Article 85 of the CPC).When receiving samples by a specialist outside the court, the judge, upon receipt of the protocol and samples, verifies compliance with the legally established procedure for obtaining samples.When conducting an expert examination of a specific object (determining the possibility of dividing a house in kind or the cost of repairing a damaged car, etc.), the court shall indicate the identification data of the specified research object in the ruling on the appointment of the expert examination., excluding his substitution.When conducting such a type of examination as a forensic examination of substances and materials (forensic examination of petroleum products and lubricants, soils, alcohol-containing liquids, special chemicals, etc.), the court must establish that the objects submitted for the study are relevant to the subject of the dispute.

4. If possible, the objects of expert research are transferred to the expert in packaged and sealed form, which should guarantee the reliability and admissibility of the objects of expert research.In other cases, the court that appointed the examination ensures that the expert is delivered to the location of the research objects, unhindered access to them and the conditions necessary for conducting the study, specifying in the definition on the appointment of the examination the persons who are responsible for delivering the expert to the place of the study, freely allow the expert to the object (for example, to inspect the house to determine the possibility of its division in kind, etc.). Depending on the type of examination and the properties of the objects of expert research, the court ruling may specify other conditions for the proper conduct of the examination.

5. The right of the persons participating in the case to be present during the examination is one of the other procedural rights specified in the first part of Article 46 of the CPC provided by the legislation on civil proceedings. The examination is a procedural action to obtain new evidence (expert opinion) and is of interest to the persons involved in the case.The persons participating in the case have the right, without any restrictions, to be present during the examination in court.The presence of persons participating in the case is not allowed when the judicial expert draws up an opinion, as well as at the stage of the meeting of judicial experts and the formulation of conclusions., if the judicial examination is carried out by a commission of judicial experts (paragraph 6 of Article 26 of the Law on SED).When conducting an expert examination outside the court, the presence of persons participating in the case is not allowed if such presence may interfere with the normal work of experts.The right to be present during the examination is exercised by submitting an appropriate oral or written request from a person participating in the case. A petition may be filed both when deciding on the appointment of an expert examination, and after the appointment of an expert examination, but before the examination is carried out. If a petition is filed after the appointment of an expert examination and the suspension of the proceedings, the court resumes the proceedings (Article 276 of the CPC) and considers the petition. After making a decision on the petition, the court has the right to suspend the proceedings again (subparagraph 6) of Article 273 of the CPC).When considering this request, the judge must ask the expert for an opinion on whether the presence of persons involved in the case may interfere with the expert's work.

Upon granting the request, the court issues a ruling authorizing the presence of the persons involved in the case during the proceedings and notifies the person who requested his presence during the examination of the place and time of the examination.The non-appearance of the notified persons does not prevent the examination. The non-appearance of persons who have not been properly notified also does not interfere with the examination and does not invalidate the expert's opinion. These persons have the right to participate in the examination of the expert's opinion and the interrogation of the expert (Articles 94, 213 of the CPC).The expert's opinion that the presence of persons involved in the case during the examination may interfere with his work is the basis for refusing to satisfy the said petition. The court's ruling on the refusal to satisfy this petition is not subject to appeal or appeal.The persons participating in the case, who are present during the conduct of the forensic examination, have no right to interfere in the course of the research, but may provide explanations related to the subject of the forensic examination (paragraph 4 of Article 26 of the Law on SED).6. Part six of this article establishes the rule on the mandatory participation of a bailiff in the conduct of an expert examination, if the persons involved in the case are present. This rule is consistent with the provision of paragraph 2 of Article 26 of the Law on SED that during the conduct of a forensic examination, with the permission of the court, participants in the process may be present to protect their own or represented rights and interests. In this case, the court's participation is mandatory. The bailiff participates in the examination on behalf of the court that appointed the examination, in accordance with the tasks provided for in paragraphs 3), 4) of Article 2 of the Law "On Bailiffs" - to assist the court in carrying out procedural actions, to ensure the protection of participants in the process. The participation of a bailiff in the conduct of a forensic examination is aimed at solving the problem of ensuring the reliability and admissibility of objects of expert examination by the court (part three of Article 87 of the CPC), as well as protecting participants in the process and ensuring order during the examination. The mandatory participation of a bailiff in the examination should be indicated in the court ruling on the satisfaction of the request for the presence of persons participating in the case during the examination.

7. The examination is usually entrusted to the judicial examination body. The court sends a ruling on the appointment of an expert examination and the necessary materials for its production - objects of expert research, including samples, samples, as well as documents contained in the case file, indicating the sheets of the case that are the objects of research. If a specific employee of the judicial examination body is indicated in the court ruling, then the examination must be carried out by this particular employee. Most often in judicial practice, the definition of the appointment of an expert examination does not specify a specific expert, the examination is entrusted to the appropriate body of judicial expertise. In this case, the head of the forensic examination body assigns the examination to one of the experts - employees of this forensic examination body. When sending the expert's opinion to the court in a cover letter, the head of the judicial examination body informs the court which of the employees was entrusted with the examination.

8. Part eight of this article provides for the rights of the head of the judicial examination body related to the organization of the examination.8.1. The head of the judicial examination body has the right to return to the court without execution the ruling on the appointment of an expert examination and the objects submitted for its production in cases provided for by law, indicating the specific grounds for returning the ruling to the court. The following circumstances are the grounds for returning the court's ruling on the appointment of an expert examination:- the absence of an expert in this body of forensic expertise with the necessary special scientific knowledge. The list of types of forensic examinations carried out in the judicial examination bodies of the Ministry of Justice of the Republic of Kazakhstan, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated January 25, 2015 No. 52, provides for 28 types of examinations and 54 expert specialties. The specialty of a forensic expert is the scientific competence of a forensic expert in the field of conducting a certain type of forensic examination established by the legislation of the Republic of Kazakhstan (subparagraph 13) of Article 1 of the Law on SED). In the territorial subdivision of the forensic examination body, due to the absence of experts in the relevant expert specialty, certain types of examinations may not be conducted (for example, forensic phototechnical examination, forensic tracological examination, etc.) or certain types of examinations may not be conducted in a specific expert specialty (for example, forensic examination of a document may include forensic examination of handwriting and signatures, a forensic technical study of documents, but not a forensic authorial study);- The material and technical base and conditions of this forensic examination body do not allow solving specific expert tasks. The production of certain types of examinations can be quite costly and expensive, and therefore, the production of such examinations is not carried out in all, but only in several territorial divisions of the judicial examination body. For example, an expensive forensic molecular genetic examination to establish paternity (motherhood) based on blood samples and buccal epithelium, which is classified as complex research (paragraph 17 of the Appendix to the Rules for Calculating the timing of forensic examinations depending on the category of their complexity and the definition of the complexity of forensic examinations, approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated January 26, 2015 No. 46), is produced in the territorial divisions of the judicial examination body in Astana and Karaganda. In this regard, before making a ruling on the appointment of an expert examination, which is entrusted to a certain territorial subdivision of the judicial examination body, the court must find out whether the necessary type of forensic examination can be carried out in this body in a specific expert specialty;- the questions posed to the expert go beyond his competence. This motive for returning the court's ruling means that the court has incorrectly formulated the questions posed to the expert. For example, when assigning a forensic examination of a document for a forensic examination of handwriting and signatures (forensic handwriting examination), the court mistakenly indicates in the definition issues related to the forensic technical examination of the document - the possible time of production of the document, the presence of corrections in the document, etc.;- the materials for the examination are submitted in violation of the requirements provided for by this Code. This ground indicates a violation of the procedure for obtaining research objects by the court and providing them to the expert (for example, the samples were not packaged and sealed), which casts doubt on the reliability and admissibility of the objects of expert research (part three of Article 87 of the CPC). Accordingly, the expert opinion obtained during the examination of such objects cannot be acceptable and reliable evidence in the case. Together with the ruling, all submitted objects are returned to the court that ordered the examination, which can be used in a new direction for the execution of the court's ruling on the appointment of an examination, if the circumstances that served as the basis for returning the ruling to the court are not irretrievable (for example, samples due to the expiration of storage periods have become unsuitable for expert examination).

8.2. When conducting a commission examination, the head of the judicial examination body has the right to petition the court that appointed the examination for the inclusion in the commission of judicial experts of persons who do not work in this body of judicial examination, if their special scientific knowledge is necessary to give an opinion. It is not allowed to involve persons who are not employees of this body of judicial expertise in the examination without approval from the court (subparagraph 2) of paragraph 2 of Article 21 of the Law on SED). The petition is considered according to the general rules with the resumption of proceedings on the case and notification of the persons participating in the case about the time and place of the court session. Based on the results of the consideration of this petition, the court issues a ruling by which the person indicated in the petition is included in the commission of judicial experts or refuses to satisfy the petition, indicating the reasons for the refusal. The refusal to satisfy the petition does not prevent another person from re-applying for inclusion in the commission of judicial experts.

8.3. The head of the judicial examination body also has the right to file a petition before the court that appointed the judicial examination for an extension of the time limit for conducting a judicial examination. The request must be motivated with reference to specific circumstances that prevent the timely conduct of an expert examination (for example, due to the complexity of the expert study, etc.). The need to extend the period of examination is determined by the expert after preliminary review of the case materials. To consider the petition, the court resumes the proceedings in the case and notifies the persons participating in the case of the time and place of the court session. The court issues a ruling on the satisfaction of the petition and the extension of the examination period for the requested period, or refuses to satisfy the petition. If the petition is not satisfied by the court, the head will organize the examination with the involvement of experts from other territorial divisions (paragraph 9 of the Instructions on the organization of forensic examinations at the Center for Forensic Examination of the Ministry of Justice of the Republic of Kazakhstan, approved by Order of the Acting Minister of Justice of the Republic of Kazakhstan dated May 24, 2011 No. 193).Other rights of the head of the judicial examination body are provided for in Article 21 of the oSED Law.9. The duties of the head of the judicial examination body provided for in part nine of this article are aimed at timely execution of the court's ruling on the appointment of an expert examination, ensuring the reliability of the expert's conclusion as evidence in the case, as well as protecting the rights and interests of persons in whose case an expert examination has been appointed.

9.1. The head of the judicial examination body, having received a ruling on the appointment of a judicial examination and the objects of research, assigns the examination to a specific judicial expert specified in the court ruling, and in the absence of such an indication, to a judicial expert with special scientific knowledge for the examination. If the court appoints a commission examination, the head of the judicial examination body shall entrust the examination to the commission of judicial experts of this judicial examination body. In the absence of a sufficient number of forensic experts in the relevant expert specialty to conduct a commission examination, the head of the forensic examination body applies to the court with a petition (see the commentary to the previous part of this article).

9.2. The head of the forensic examination body is obliged to ensure control over the timely production of expertise, the comprehensiveness, completeness and objectivity of the conducted research., ensuring the safety of forensic examination facilities.To ensure control over the timely conduct of an expert examination, the head of the forensic examination body, within the time limits established by law (depending on the degree of complexity of the examination), determines the specific time for conducting an expert examination in accordance with the Rules for Calculating the Time limits for conducting forensic examinations depending on their complexity category and determining the complexity categories of forensic examinations, approved by the order of the Minister of Justice of the Republic of Kazakhstan dated January 26 2015, No. 46. The head of the judicial examination body is also entitled to petition the court for an extension of the examination period (see the commentary to part eight of this article).The content of the comprehensiveness, completeness and objectivity of forensic expert research is disclosed in Article 10 of the Law on SED. In cases where the supervisor discovers incompleteness of the research, methodological and procedural violations during the examination, which may lead to erroneous conclusions, incorrect design, or the research part and conclusions of the conclusion raise doubts about the integrity of the research, the conclusion is returned to the expert for changes and clarifications. If the expert insists on the correctness of the course of his research and the conclusions drawn on it, the head points out the shortcomings in the cover letter to the expert's conclusion (paragraph 11 of the Instructions on the organization of forensic examinations at the Center for Forensic Examination of the Ministry of Justice of the Republic of Kazakhstan, approved by the order of the acting Minister of Justice of the Republic of Kazakhstan dated May 24, 2011 No. 193).Ensuring the safety of forensic examination objects is necessary to return them to court, as well as to preserve the possibility of further use of these objects for expert research, if other examinations are necessary. The procedure for receiving, storing and returning forensic examination objects is regulated by the Rules for Handling Forensic Examination Objects, approved by Order No. 50 of the Minister of Justice of the Republic of Kazakhstan dated January 26, 2015 (as amended by Order No. 396 of the Minister of Justice of the Republic of Kazakhstan dated July 16, 2015).The specified duties of the head of the judicial examination body must be carried out without violating the principle of independence of a judicial expert (subparagraph 3) of Articles 5, Article 8, subparagraph 3) of paragraph 2 of Article 21 of the Law on SED).

9.3. The head of the forensic examination body is obliged not to disclose information that he or she knows in connection with the organization of the forensic examination. The expert's opinion, the objects of the expert study and the cover letter can only be sent to the court that ordered the examination.

10. The examination may be entrusted to a person who is not an employee of the judicial examination body (subitems 2), 3) of the fifth part of Article 82 of the CPC). In this case, the court must verify the identity of the expert and the absence of grounds for challenging the expert before issuing a ruling on the appointment of an expert examination. The grounds for the expert's recusal are provided for in subitems 2), 3) of the first part of Article 38, part two of Article 39 of the CPC. In this regard, the court may ask the expert relevant questions aimed at clarifying the presence or absence of circumstances provided as grounds for recusal: in what relationship the expert has with the persons involved in the case, what is the scientific competence of the expert, whether clarifying the circumstances relevant to the case goes beyond the scope of his special knowledge.The court performs the same actions in the case of consideration of the petition of the head of the judicial examination body for inclusion in the commission of judicial experts of persons who do not work in this body of judicial examination (see commentary to part eight of this article).11. Part eleven of this article provides for a reference to Articles 110, 111 of the CPC, which provide for the types of amounts to be paid to experts and the procedure for their payment.

Additional comment

1. The location of the examination is determined by the nature of the research objects and the issues raised for resolution. Thus, when conducting simple economic calculations (payroll, mandatory taxes and payments), it is possible to conduct a forensic examination in court. If it is necessary to use a tool base, computational and graphical programs, and several research methods, the examination is carried out outside the court, in the judicial examination body. When examining large-sized objects (motor vehicles), construction sites and complexes, the examination is also carried out outside the court. For the duration of the forensic examination, the court may postpone the proceedings until an expert opinion is received.

.2. When conducting an expert examination, research objects with the permission of the court that ordered the forensic examination may be damaged or used only to the extent necessary for conducting research and giving an opinion.This rule restricts the actions of an expert in order to maximize the safety of research objects that are material evidence, documents or samples in the civil case under consideration. This is due to the fact that, firstly, most of these objects are unique and represent primary evidence in the case, and secondly, the court should still have the opportunity to appoint both an additional, repeated examination, and other types of examinations (for example, after conducting a technical examination of documents, appoint a forensic handwriting study)..The specified permission must be contained in the decision on the appointment of a forensic examination. Until a reasoned ruling is received, the examination proceedings are suspended in accordance with paragraph 4 of Article 25 of the Law on the SED, but not for more than ten days. If the circumstances that were the basis for suspending the forensic examination are not eliminated within the specified period, the ruling on the appointment of a forensic examination remains unenforceable, and the materials submitted for its production are sent to the court that appointed the forensic examination.

3. In civil proceedings, the burden of proof is placed on the parties, they are the ones who have the right to submit items, written documents, and other sources of factual data confirming or refuting certain circumstances of the case under consideration. The court examines the objects presented by the parties, after which it decides to attach them to the case file as evidence, samples, or excludes them from the list of such, and issues a reasoned ruling.The admissibility of the objects of expert research is guaranteed by the fact that they were obtained in accordance with the procedure established by the CPC, were announced at a court hearing, presented to the persons participating in the case, their representatives, and examined in conjunction with other evidence. Thus, information about facts is recognized by the court as inadmissible as evidence if it was obtained in violation of the requirements of the CPC by depriving or restricting the legally guaranteed rights of persons involved in the case who influenced or could have influenced the reliability of the information about the facts (for details, see the commentary to art. 66 CPC).These norms ensure compliance with reality (reliability) and the procedural form of securing and removing (permissibility) objects of expert research.

4. Objects of expert research are sent to the body of judicial expertise or to an individual engaged in forensic expertise on the basis of a license, by mail, special communication, directly by the person appointing the forensic examination, or his authorized representative. Objects, if their dimensions allow, are transferred in packaged and sealed form, which should guarantee the reliability and admissibility of objects of expert research.According to paragraphs 3, 4 of the Rules for Handling Objects of Forensic Examination, it is not allowed to send weapons, ammunition, explosives and pyrotechnic compositions, explosive devices and explosive devices, flammable and combustible substances, narcotic drugs, psychotropic substances and precursors, potent, toxic and poisonous substances, radioactive substances and nuclear materials by mail or special communication., jewelry, securities, biological samples in their natural state, bulky objects________________________46 Order of the Minister of Justice of the Republic of Kazakhstan dated January 26, 2015 No. 50 "On approval of the Rules for Handling judicial facilities expertise".

Objects of forensic examination are placed in a package that excludes the possibility of their damage, replacement, modification and ensures the preservation of signs and properties, as well as traces on them, by virtue of which they are relevant in the case. Objects of forensic examination are packed in such a way that their properties and shapes are not lost during transportation, as well as in order to exclude the possibility of their falsification. Each carrier object and samples of substances are packed in a separate container, taking into account the specifics of the objects, in order to avoid objects coming into contact with each other during transportation. For objects of forensic histological examination (research), packaging in one container is allowed. Transportation of biological fluids, biological tissues and organ parts in their natural state is provided under appropriate temperature conditions (in special containers with refrigerant) for no more than three days.

5. The rules and conditions for the presence of persons involved in the case during the examination are spelled out in detail in paragraphs 4-6 of Article 26 of the Law on SED. Thus, the participants in the process, who are present during the forensic examination, do not have the right to interfere in the course of research, but they can provide explanations related to the subject of the forensic examination. If a participant in the process, who is present during the forensic examination, interferes with the activities of the forensic expert, the latter has the right to suspend the study and petition the court to revoke the permission of the specified participant in the process to be present during the forensic examination. When a judicial expert draws up an opinion, as well as at the stage of a meeting of judicial experts and the formulation of conclusions, if the judicial examination is carried out by a commission of judicial experts, the presence of participants in the process is not allowed.The non-appearance of the persons participating in the case, who are allowed to be present at the expert examinations of the objects of expertise, is not an obstacle to such studies.

6. This provision is of an organizational nature and follows from the tasks assigned to bailiffs by the Law "On Bailiffs" (sub-paragraphs 3), 4) of Article 2): assistance to the court in carrying out procedural actions, ensuring the protection of participants in the process.If, in order to ensure the order and protection of the participants in the process during the conduct of a forensic examination outside the court in the presence of persons involved in the case, the participation of a bailiff is necessary., The court issues a reasoned ruling on the mandatory presence of a bailiff during the examination or indicates this in the ruling on the satisfaction of the request for the presence of persons participating in the case during the examination.

7. The basis for conducting a forensic examination in a judicial examination body is a ruling on the appointment of a forensic examination. In this case, the court sends to the head the definition and materials necessary for the study and conclusion. At the same time, he instructs the head to explain to the experts who will conduct the forensic examination the procedural rights and duties of the expert, as indicated in the ruling on the appointment of a forensic examination or in the cover letter.The head of the forensic examination body, having received a ruling on the appointment of a forensic examination, carefully examines it and the received case materials; decides whether this task falls within the competence of the forensic examination body.; if the expert is not specified in the definition, he assigns its production to a specific expert who has special scientific knowledge to the extent required to answer the questions raised. If a specific employee of the judicial examination body is indicated in the court ruling, then the examination should be entrusted specifically to him.The head of the forensic examination body organizes the production of a commission or complex examination, entrusting its production to the commission of experts of the forensic examination body.; appoints the head of the commission from among the experts, who is instructed to perform organizational functions; ensures control over compliance with the deadlines for conducting forensic examinations, the completeness and quality of the research conducted, without violating the principle of the expert's independence.It is mandatory to notify the court of the candidacy of the judicial expert who is charged with conducting the examination, which is due to the need to inform the persons involved in the case in a timely manner so that they can, if there are appropriate legal grounds, request the withdrawal of this candidacy.

8. This norm defines the scope of the rights of the head of the judicial examination body related to the organization of the examination.

8.1. The head of the judicial examination body has the right to return the ruling on the appointment of an expert examination without execution, if there is no expert with special scientific knowledge necessary to answer the questions raised. In this case, the letter indicates that this body (territorial subdivision) does not have the opportunity to conduct an examination of this type and, as a rule, provides a list of territorial divisions of the forensic examination body, which have employees with this expert specialty. A similar letter is sent to the court in the absence of a material and technical base in the territorial unit and conditions that do not allow solving specific expert tasks.The head of the forensic examination body returns the decision on the appointment of an expert examination without execution, if the questions posed to the expert go beyond his competence. This situation arises if the expert's permission is asked for questions that do not require special scientific knowledge, if the questions are of a legal nature, or if the questions relate to types of research that are not included in the list of types of forensic examinations conducted by judicial authorities, for example, art history examinations.The head of the judicial examination body returns the ruling on the appointment of an expert examination without execution if the materials for the examination are submitted in violation of the requirements provided for by the CPC. Such violations include errors and gaps in the preparation of the determination on the appointment of an expert examination: the forensic examination body entrusted with the production is not specified; the issues raised for permission are not indicated; there is no list of research facilities provided, etc. The reason for the return of materials is the absence of packages on the research objects, since in this case it is impossible to identify the objects, in addition, this may lead to loss, falsification or modification of objects.

8.2. The head of the judicial examination body has the right to petition the court for the inclusion in the commission of judicial experts of persons who do not work in this body of judicial examination, if their special scientific knowledge is necessary to give an opinion. As a rule, this is necessary when organizing commission or complex expert research to solve complex expert tasks. In this case, either experts from another forensic examination body or individuals who carry out forensic expert activities on the basis of a license are involved. A reasoned petition for the involvement of such persons is sent to the court by the head of the judicial examination body.

8.3. The head of the judicial examination body also has other rights provided for by the Law on SED, in particular, he has the right to petition the court that appointed the judicial examination to involve a judicial expert from a foreign state.9. The commented norm regulates the list of duties of the head of the judicial examination body, which should ensure the timely execution of the court ruling on the appointment of an expert examination, the reliability of the expert's conclusion as evidence in the case, as well as the protection of the rights and interests of persons in whose case an expert examination is appointed.

9.1. By entrusting the examination, the head is obliged to decide whether the examination will be a one-man examination or whether a commission examination is necessary. If necessary, the head can organize the production of a comprehensive examination, entrusting its production to experts of various specialties. The commissions appointed by the head may include only experts who work in this body of judicial expertise and comply with the requirements of the Law on SED (see the commentary to the fourth part of Article 82 of the CPC). The supervisor notifies the court of the decision.

9.2. The control functions of the head of the forensic examination body include control over the timing of the examination, the completeness and objectivity of the study, and the safety of the objects presented. Ensuring the proper completeness and quality of the examination, and meeting deadlines increase the importance of the examination as evidence. Strict observance of the legality of the examination gives the study the importance of acceptable evidence, the completeness of the examination is directly related to the relevance of the expert opinion, i.e. its compliance with the subject of evidence, the high quality of the research determines the reliability of the conclusions presented to the subjects of legal proceedings.The objects presented for research should be preserved as much as possible. At the same time, it is necessary to take into account the procedural requirements for the safety of physical evidence, the provisions of the CPC that the methods used should not destroy or alter the objects of research, unless there is consent from the court that ordered the examination.

9.3. The responsibility of the head is to create conditions for the preservation of state, investigative, commercial secrets, and other legally recognized restrictions on the dissemination of information. These tasks are solved through appropriate paperwork and other organizational methods. Thus, the expert's opinion, the objects of the expert study and the cover letter can only be sent to the court that ordered the examination.It should be noted that according to subparagraph 4) of Article 22 of the Law on SED, the head of the forensic examination body is obliged to provide the expert with the conditions necessary for conducting research.

10. The commented norm refers to individuals who carry out forensic expertise on the basis of a license, and other persons involved in the production of expertise on a one-time basis.To order the examination of the first category of persons, it is necessary to make sure that this person has a license for the right to conduct a certain type of forensic examination, is entered in the State Register of Forensic Experts of the Republic of Kazakhstan and is certified. This information is available on the official website of the Ministry of Justice of the Republic of Kazakhstan. In case of failure to pass certification, suspension, termination, or revocation of a license to engage in forensic expert activity, such a person is not entitled to give an expert opinion.In order to attract a person on a one-time basis, it is necessary to make sure that he has a higher education and has special scientific knowledge in a certain field (paragraphs 1 and 4 of Article 12 of the Law on SED). The supporting documents are a diploma of higher education corresponding to the profile of the appointed examination, a diploma of candidate/doctor of sciences, scientific publications (articles, theses, textbooks, monographs).The court performs the same actions in the case of consideration of the petition of the head of the judicial examination body for inclusion in the commission of judicial experts of persons who do not work in this body of judicial examination.

11. Part eleven of this article provides for a reference to Articles 110, 111 of the CPC, which define the types of expenses related to the examination and the procedure for their payment. So, expenses include:a) the cost of chemical reagents and other consumables used in the expert study, spent by the expert while performing the assigned work, utilities; b) the cost of renting equipment if the expert concluded a lease agreement for such equipment for the examination; c) expenses incurred in connection with travel to court, rental of premises and per diem in the amounts established for persons sent on business trips.The costs associated with the production of expertise also include the remuneration of the expert, if the expert is not a full-time employee of the judicial examination body. The costs of conducting an expert examination by the court are distributed in accordance with the procedure provided for in Article 110 of the CPC (see comments to this article).The amounts to be paid for the examination by the judicial examination body are paid to the republican budget in the form of an advance payment by the party who filed the petition or by the party to whom the court has imposed such an obligation.

LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

Astana, 2016

UDC 347 (574)  

By 63

ISBN 978-601-236-042-4

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