Comments on article 88. Individual and commission expertise of the Civil Procedure Code of the Republic of Kazakhstan

1. The expert examination is carried out by an expert alone or by a commission of experts.2. A commission examination is appointed in cases where it is necessary to conduct complex expert research and is conducted by at least two experts of the same specialty.3. When conducting a commission forensic examination, each of the judicial experts independently and independently conducts a full forensic examination. The members of the expert commission jointly analyze the results obtained and, having come to a common opinion, sign an opinion or a message stating that it is impossible to give an opinion. In case of disagreement between the experts, each of them gives a separate opinion, or the expert, whose opinion differs from the conclusions of the other members of the commission, formulates it separately in the conclusion.4. A court ruling on the commission examination is mandatory for the head of the judicial examination body. The head of the judicial examination body has the right to independently decide on conducting a commission examination based on the submitted materials and organize its production.This article regulates the types of expertise depending on the number of experts involved in the study.1. As a rule, one judicial expert participates in an expert study, who is indicated in the court's ruling on the appointment of an expert examination or who is entrusted with the conduct of an expert examination by the head of the judicial examination body.When conducting complex or particularly complex forensic investigations, the examination may be carried out by a commission of experts who use special scientific knowledge in the same expert specialty (for example, a particularly complex study of handwriting and signatures during the forensic examination of a document).2. A commission examination is appointed in cases where it is necessary to conduct complex, multi-object expert studies (paragraph 6 of the Instructions on the organization of forensic examinations at the Forensic Examination Center 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).

The complexity categories of forensic examinations by type of forensic expert research are provided for in the Appendix to the Rules for Calculating the Time limits for conducting Forensic Examinations, depending on the category of their complexity and determining the complexity categories of forensic examinations, approved by Order No. 46 of the Minister of Justice of the Republic of Kazakhstan dated January 26, 2015. A commission examination is conducted by at least two experts of the same specialty, the list of which is provided by the List of types of forensic examinations performed by the judicial examination bodies of the Ministry of Justice of the Republic of Kazakhstan, approved by Order of the Minister of Justice of the Republic of Kazakhstan dated January 25, 2015 No. 52.3. Part three of this article provides for the procedure for conducting a commission forensic examination, which is also established by Article 28 of the Law on SED.Each of the forensic experts conducts a full-scale forensic expert study independently and independently by virtue of the principle of judicial expert independence (subparagraph 3) of Article 5 of the Law on SED).If a general opinion is reached, the members of the expert commission sign an opinion or a message stating that it is impossible to give an opinion.In case of disagreement between experts during the commission examination, the conclusion may be drawn up by each expert as a separate procedural document (for example, if the examination was conducted by a commission of two experts). If the commission consists of more than two experts, then in case of disagreement between the expert and the other members of the commission, one conclusion is drawn up, which separately indicates the conclusions of the expert and the other members of the commission.

.4. If the court has appointed a commission examination, then this ruling is mandatory for the head of the judicial examination body, which determines the composition of the commission. If the court ruling does not indicate that a commission examination should be conducted, but it is necessary based on the complexity of the expert study, the head of the judicial examination body has the right to independently decide whether to conduct a commission examination based on the submitted materials and organize its production. The expert opinion obtained in this case represents the execution of the court's ruling on the appointment of an expert examination and has the force of evidence in the case.Additional comment1,

2. A commission examination is any examination in which two or more experts who are specialists in the same field of knowledge, appointed by a court ruling or the head of a judicial examination body, participate. To coordinate the activities of the forensic experts who are part of the commission, the head of the forensic examination body or the judge who appointed the commission forensic examination appoints a leading expert.Each member of the expert commission conducts a full study. If a commission of experts has been established to carry out a large amount of homogeneous research work, for example, due to the large number of objects, then each member of the commission should finally make sure that this work has been done at the proper level by other experts, and only after that begin a joint analysis and discussion of the final conclusions.

3. Each expert who is a member of the commission is independent in his research activities, he independently conducts research and formulates conclusions upon their completion, bears full responsibility for the results. On behalf of the head of the forensic examination body, one of the experts acts as the head of the expert commission. He organizes the work of the expert commission, plans the start and end dates of expert research, the volume of research, creates conditions for the fruitful work of experts (paragraph 4 of Article 28 of the Law on SED). At the same time, the head of the commission does not have any advantages over experts, he remains an expert and cannot procedurally influence the course and results of the study.All experts involved in the commission examination have equal rights. The ideal situation is when the opinions of all the experts involved in conducting the commission examination coincide. In this case, the commission of experts draws up a single opinion. If any member of the commission has his own opinion that differs from the others, he draws up an independent expert opinion or formulates his conclusions separately. The only criterion and basis for the formulation of conclusions on the issues raised for the resolution of the expert commission is the expert's special scientific knowledge.

4. The court's indication in the ruling on the appointment of an expert examination to be conducted by a commission of experts is mandatory for the head of the judicial examination body. In case of violation of the law, the court has the right to issue and send a private ruling to the relevant organizations performing managerial functions, which are required to report on the measures they have taken within one month (part one of Article 270 of the CPC).The head of the forensic examination body, having studied the submitted materials and determined the scope of expert work, has the right to independently decide on conducting a commission examination and organize its production.

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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