Comments to article 82. Appointment of a judicial examination of the Civil Procedure Code of the Republic of Kazakhstan

1. A judicial examination is appointed in cases where circumstances relevant to the case can be established as a result of an examination of its objects conducted by an expert on the basis of special scientific knowledge. The availability of such knowledge from other persons involved in civil proceedings does not exempt the court from the need, in appropriate cases, to appoint an expert examination.2. The presence of audit reports, inspections, departmental inspection reports, as well as written expert consultations, appraiser reports in the case does not replace the expert's opinion and does not exclude the possibility of appointing a forensic examination on the same issues.3. The court appoints a judicial examination at the request of a party or on its own initiative.4. Upon the application of the party and other persons participating in the case concerning the falsification of written evidence, the court has the right to appoint an appropriate expert examination.5. A person with special scientific knowledge who is not interested in the case may be called in as an expert. The production of a forensic examination may be entrusted:1) employees of the judicial examination bodies; 2) individuals engaged in forensic expertise on the basis of a license; 3) on a one-time basis, other persons with special scientific knowledge, in accordance with the requirements of the Law of the Republic of Kazakhstan "On Forensic Expertise in the Republic of Kazakhstan."6. The persons involved in the case may request the court to order the conduct of a forensic examination to a specific person with the necessary special scientific knowledge.The court's requirement to summon the person charged with conducting the examination on a one-time basis is mandatory for the head of the organization where the specified person works.7. Each person participating in the case has the right to submit to the court the questions that should be put before the expert. The final range of issues on which the expert must give an opinion is determined by the court. The court is obliged to motivate the rejection of the proposed questions in the ruling on the appointment of a forensic examination.

8. If a party avoids participating in the examination or obstructs its conduct (does not appear for the examination, does not provide the experts with the materials necessary for the study, does not provide the opportunity to study objects belonging to it that are impossible or difficult to submit to the court), and due to the circumstances of the case, it is impossible to conduct an examination without the participation of this party, the court depending on which side evades the examination, it has the right to recognize the fact for which the examination was appointed, established or refuted.9. The court issues a ruling on the appointment of an expert examination, explains to the expert the rights and obligations provided for in Article 91 of this Code, and warns of criminal liability for knowingly giving a false conclusion.The ruling on the appointment of a judicial examination shall specify: the name of the court; the time and place of appointment of the examination; the name of the parties to the case under consideration; the type of examination; the grounds for the appointment of an examination; questions posed to experts; case materials and objects sent for examination, and information about their origin; permission for the possible complete or partial destruction of objects, changing their appearance or basic properties during the study; the name of the forensic examination body and (or) the surname of the person charged with conducting the forensic examination on a one-time basis; the name of the party that must pay for its conduct. A court ruling on the appointment of a forensic examination is mandatory for execution by the authorities or persons to whom it is addressed and falls within their competence.The examination is carried out within the time limits established by the Law of the Republic of Kazakhstan "On Forensic expertise in the Republic of Kazakhstan". The decision on the appointment of an expert examination is not subject to appeal or protest. Arguments about disagreement with the definition may be included in the appeal.This article provides for a number of procedural issues related to the regulation of the grounds and procedure for the appointment of a forensic examination.; the range of subjects of forensic expertise; the procedural rights of the persons involved in the case when appointing an expert examination; the content of the definition on the appointment of an expert examination.1. An expert examination is a study by experts on a scientific basis of objects submitted by the court in order to extract information about facts relevant to the case. A judicial examination is called an examination appointed by a court during the consideration of a civil case, in contrast to examinations appointed by other state bodies.The purpose of the appointment of a forensic examination is to obtain written evidence about the facts. The objects of expertise can be living people, actions, phenomena, objects. Special knowledge refers to such knowledge that is beyond the limits of legal knowledge, well-known generalizations arising from the experience of people.In order to distinguish the procedural status of the participants in the process and ensure that the expert is not interested in the results of the examination, the law establishes the rule that the examination is appointed by the court even if the relevant special knowledge is available to the persons involved in the case.2 The second part of this article provides for the possibility for the court to appoint an expert examination even in the presence of other written evidence - acts of audits, inspections, conclusions of departmental inspections, as well as written consultations of specialists, reports of appraisers. Most often, an expert examination on the same issues that were the subject of research in the specified written evidence is appointed when the persons involved in the case challenge the submitted written evidence.

3. A judicial examination shall be appointed by the court in charge of the civil case.A judicial examination may be ordered at the stage of preparation (subparagraph 9) of Article 165 of the CPC) or at a court hearing before the decision is made.Judicial examination is appointed, as a rule, at the request of the party.The court, on its own initiative, appoints a judicial examination in cases directly provided for by law (part two of Article 325 of the CPC).4. One of the grounds for the appointment of an expert examination is the statement of the person involved in the case about the falsification of written evidence (see commentary to the fourth part of Article 68 of the CPC). In such cases, the relevant expertise is most often forensic handwriting or forensic technical expertise.Since audio and video recordings and physical evidence may also be the object of falsification, the court has the right to order a judicial examination in the case of an application for falsification of said evidence.The appointment of an expert examination on this basis is the right of the court. The court has the right to refuse to appoint an expert examination if other reliable evidence is provided to confirm the disputed factual circumstance, which is sufficient to establish the disputed fact.5. Part five of this article establishes the circle of persons who can be experts in the case.The expert must be a person who is not interested in the case, which excludes his participation in the case as a person with a different procedural position. In case of doubt about the expert's disinterest, the persons participating in the case have the right to challenge the expert on the grounds provided for in part one of Article 38, part two of Article 39 of the CPC.The expert must have special scientific knowledge to study the evidence and case materials.The conduct of a forensic examination may be entrusted to: employees of the judicial examination authorities (subitem 1) of paragraph 2 of Article 12 of the Law on SED); individuals engaged in forensic expertise on the basis of a license (subitem 2) of paragraph 2 of Article 12 of the Law on SED); on a one-time basis to other persons with special scientific knowledge (subitem 3) of paragraph 2 of Article 12 of the Law on SED).The grounds for conducting an expert examination on a one-time basis are provided for in paragraph 3 of Article 12 of the Law on SED and include the following cases::1) appointment of a forensic examination that is not provided for in the list of types of forensic examinations established by the Ministry of Justice of the Republic of Kazakhstan; 2) satisfaction of a reasoned petition of a participant in criminal or civil proceedings, an authority (official) authorized to consider cases of administrative offenses, a participant in the proceedings on an administrative offense involving as an expert a person who is not an employee of the judicial examination bodies or carries out forensic expert activities on the basis of a license in accordance with the laws of the Republic of Kazakhstan; 3) satisfaction of the challenge to all judicial experts of the relevant specialty who are employees of the judicial examination bodies, as well as carrying out forensic expert activities on the basis of licenses, or the reasoned dismissal of the judicial examination body as a whole from the judicial examination; 4) the involvement of a judicial expert from a foreign state in accordance with Article 49 of the Law on SED.The list of types of forensic examinations carried out in the judicial examination bodies of the Ministry of Justice of the Republic of Kazakhstan was approved by the Order of the Minister of Justice of the Republic of Kazakhstan dated January 25, 2015 No. 52. This list includes 28 types of forensic examinations.According to subparagraph 25) of paragraph 1 of Article 28 of the Law "On Permits and Notifications", certain types of activities or actions (operations) in the field of forensic expertise are subject to licensing.6. The examination is entrusted by the court, as a rule, to the judicial examination body with or without specifying the specific employee who is to carry out the examination. However, the persons involved in the case may ask the court to assign the proceedings to a specific person with the necessary special scientific knowledge.The court assigns the examination to a specific expert if there is no disagreement among the persons involved in the case regarding a specific expert candidate. In case of objections, the court does not specify a specific expert in the definition and sends the definition on the appointment of an expert examination to the head of the forensic examination body, who selects the expert (part seven of Article 87 of the CPC) or motivates the need to entrust the examination to a specific person who is not an employee of the forensic examination body (for example, the need to conduct an expert examination of the case and assign it to a specific person due to the absence of other experts).In order to ensure the conduct of an expert examination, if it is ordered to be conducted on a one-time basis, the law establishes an imperative rule on the mandatory requirement of the court to summon the person indicated by the expert for the head of the organization where the person works.7. When appointing an expert examination, the court explains to the persons participating in the case their right to submit to the court the questions that should be put before the expert, regardless of which person requested the expert examination. The court determines and specifies in the definition the final range of questions to which the expert must provide answers. If the proposed questions are rejected, the court must indicate in the ruling on the appointment of a forensic examination the reasons why the question proposed by the person involved in the case was rejected (for example, the questions are actually duplicated, go beyond the competence of the expert, the proposed questions are legal, etc.).If the persons participating in the case have not submitted their questions to the court for the expert, the range of issues is determined by the court, taking into account the opinion of the persons participating in the case.8 Part eight of this article provides for the procedural consequences of a party's evasion from participating in the examination or obstruction of its conduct - the court has the right to recognize the disputed fact, for which the examination was appointed, established or refuted. For example, if the defendant fails to appear for an expert examination in the case of establishing paternity of a child born to the plaintiff, the court has the right to recognize as established the fact of the origin of the plaintiff's child from the defendant.9. Part nine of this article provides for the mandatory procedural actions of the court when making a ruling on the appointment of an expert examination.: During the court session, the court explains to the expert his procedural rights and obligations and warns of criminal liability for giving a knowingly false conclusion in accordance with Article 420 of the Criminal Code, about which a subscription is taken from the expert, which is attached to the minutes of the court session (Article 200 of the CPC).This article also regulates the content of the definition on the appointment of an expert examination.The name of the court is indicated in the introductory part of the definition.; the time and place of the examination; the name of the parties to the case under consideration.The type of examination may be indicated in the name of the judicial act (for example, the definition of the appointment of a forensic handwriting examination), and is also indicated in the operative part of the definition. The type of examination, the production of which is entrusted to the forensic examination body, should be provided for in the List of types of forensic examinations carried out in the forensic 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. Otherwise, the examination is entrusted on a one-time basis to other persons with relevant special scientific knowledge.The descriptive part of the definition indicates the grounds for the appointment of an expert examination - the need to study specific circumstances relevant to the case, using special scientific knowledge.In the operative part, the court formulates specific questions put to the experts.In the ruling, the court indicates the case materials and objects sent for examination, as well as information about their origin. The objects of forensic examination are - material evidence, documents, the human body and state of mind, corpses, animals, samples, as well as information related to the subject of forensic examination contained in the materials of the case on which the forensic examination is being conducted (subparagraph 9) of Article 1 of the Law on SED). For example, free and experimental handwriting or signature samples are sent for forensic handwriting examination, and if available, conditionally free handwriting or signature samples (see commentary to Article 85 of the CPC). The court certifies experimental samples of handwriting or signature, indicating, for example, "experimental sample of handwriting (signature) ... (hereinafter surname and initials of the person), judge ...". On free and conditionally free samples of handwriting and signature, a certification inscription is affixed, if possible, and in the absence of such, these samples are specified in detail in the definition (for example, a receipt for payment on behalf of the utility services party from a certain date).The operative part of the definition also indicates permission for the possible complete or partial destruction of objects, changing their appearance or basic properties during the study. The absence of an indication of such permission in the court ruling may lead to red tape in the case due to the possible subsequent appeal of the expert to the court with this issue and the suspension of the examination period.The definition indicates the correct name of the forensic examination body that is charged with conducting the examination. The definition may specify a specific employee of the judicial examination body who is charged with conducting the examination. 

Thus, the Center for Forensic Expertise conducts expert research on the following types and classes of forensic examinations: forensic examination of documents; forensic portrait examination; forensic videographic examination; forensic photographic examination; forensic tracological examination; forensic ballistic examination; forensic examination of substances and materials; forensic examination of the circumstances of road accidents and vehicles; judicial economic expertise; judicial commodity expertise; judicial construction expertise; forensic technological expertise; forensic fire technical expertise; forensic explosive technical expertise; forensic examination of narcotic drugs, psychotropic substances, their analogues and precursors; forensic biological expertise; forensic molecular genetic expertise; forensic examination of human psychophysiological processes; forensic environmental expertise; forensic examination of genetically modified organisms; forensic religious expertise; forensic examination of man-made disasters.The Center for Forensic Medicine conducts examinations in the following areas:: forensic medical examination of a corpse; forensic medical examination of victims, accused and other persons; forensic medical examination based on materials of criminal, civil and administrative cases; forensic medical examination of physical evidence; forensic biochemical examination of biological objects; forensic molecular genetic examination.An analysis of expert practice shows that in civil proceedings, forensic examinations of documents and their details are most in demand (forensic examination of handwriting and signatures, forensic technical examination of documents), research of construction sites, motor vehicles, forensic economic and commodity research, forensic molecular genetic examination.2. A judicial examination is usually ordered on the same issues that were the subject of research in the written evidence indicated in the commented norm, in cases where the persons involved in the case dispute the submitted written evidence.Certificates, acts, conclusions, and other forms of recording the results of departmental or other research (acts of departmental examinations, audits, audits, cost calculations for repairing a damaged car, etc.) received at the request of the parties or other persons involved in the civil process, They cannot be considered as an expert opinion and are not grounds for refusing to conduct a forensic examination. The results of such studies are attached to the case as written evidence (part one of Article 100 of the CPC). Unlike an expert examination, such studies are not provided with procedural conditions and guarantees, therefore, after accepting a civil case for consideration, a judicial examination may, and in some cases should, be appointed instead.A specialist's opinion also cannot replace an expert's opinion, since the CPC does not regulate the content of such an opinion, only part four of Article 77 of the CPC states that a specialist's opinion must be provided in writing. A specialist, unlike an expert, does not conduct research and in a written conclusion sets out only his judgments on the questions put to him, the answers to which require special knowledge. The subject of this conclusion can only be those facts and circumstances that are accessible to the direct perception of human senses or about which the materials of the civil case already contain any information. The judgments contained in the expert's opinion only contribute to the parties' correct understanding of the facts and circumstances relevant to the case, regarding which questions were raised.3. The commented norm establishes an imperative rule that the appointment of an expert examination falls within the exclusive competence of the court in which the civil case is pending.The term "court initiative" should be understood as the court's right to appoint an expert examination. Such an initiative of the court can be implemented in the event that the party, independently, taking into account age, health status, level of education, financial situation, cannot fully exercise their procedural rights, and the circumstances of the case, which can be established by an expert, are important for the proper resolution of the case.4. The commented norm is a novel. The introduction of this rule is due to the fact that most written evidence confirming the legitimate claims of the parties or refuting the arguments of the other party is provided by participants in the civil process, which, taking into account the interests of the party or a third party, may lead to falsification of any submitted document.If there are reasonable arguments from the other party and third parties about the possible falsification of written evidence, which includes acts, documents, letters of a business or personal nature containing information about circumstances relevant to the case., to establish the legal fact of falsification, the court may appoint the following types of forensic examinations::- forensic examination of the handwriting and signature, which will allow to establish whether the signature, handwritten text was executed by a specific performer, or the signature on behalf of one person was executed by another person with imitation;- forensic technical examination of documents, during which a wide range of issues can be resolved, namely: whether there are erasures in the document, additions, corrections; whether the form of the document corresponds to the established sample; whether the document is printed on the provided printer; in what order are the signature and seal impression applied to the document; in what way is the seal and stamp impression applied and does it correspond to the sample; whether there are signs of mounting the document details and others in the document.When formulating questions, it should be borne in mind that they should not use terms that require a legal assessment of research objects, for example: "Is the higher education diploma form submitted for the study genuine or fake?".Audio and video recordings do not apply to written evidence, therefore, in order to establish the disputed fact (authenticity of the recording), a determination on the appointment of an expert examination is made on general grounds.5. The commented norm defines the list of mandatory conditions for the involvement of a person as an expert, as well as the circle of persons who may be entrusted with the conduct of a forensic examination.In accordance with the Law on SED, a judicial expert must have a higher education, have the qualification of a judicial expert, confirmed by a qualification certificate for the right to conduct a certain type of forensic examination, be certified by commissions of the Ministry of Justice of the Republic of Kazakhstan and entered in the State Register of Judicial Experts of the Republic of Kazakhstan (paragraphs 4, 5 of Article 12 of the SED Law).A judicial expert may not be a person who has been recognized by a court as having limited legal capacity or incapacity., or having an outstanding or outstanding criminal record (paragraph 8 of Article 12 of the Law on SED).A person may not be a judicial expert for three years from the date of the relevant legal fact.:1) whose criminal record has been expunged or withdrawn in accordance with the procedure established by law; 2) released from criminal liability on non-rehabilitating grounds for committing an intentional crime; 3) dismissed on negative grounds from public service from law enforcement agencies, courts, bodies of judicial expertise; 4) deprived of a license to engage in forensic expert activity; 5) whose license to engage in forensic expert activity has been terminated on the grounds provided for by law.6. The commented norm establishes the right of the parties and other persons participating in the case to request the court to appoint an expert examination in a specific body of judicial expertise or to entrust it to a specific expert (commission of experts); to challenge the expert. The candidature of an expert may be selected from among the persons listed in the State Register of Judicial Experts of the Republic of Kazakhstan, as well as in the absence of persons with special scientific knowledge in a particular field in the specified register, from among the specialists who may be involved in the examination on a one-time basis. In this case, the court is obliged to make sure that the candidate for expert has a document confirming the possession of special scientific knowledge, explain to him the rights and duties of the expert and warn him about criminal liability for knowingly giving a false conclusion.This provision does not provide for the possibility of rejecting the proposed candidacy of an expert, however, in this case, Article 39 of the CPC applies, which defines the requirements for an expert and the grounds for his possible withdrawal.7. The commented norm defines the procedure for appointing an expert examination, which consists of several stages. In accordance with the first part of Article 46 of the CPC, the plaintiff and the defendant, third parties, as well as their representatives, have the right to submit questions to the court orally or in writing, to which the expert will have to give answers, as well as to express objections to the questions proposed by the other party. Questions in writing are attached to the case file, and questions in oral form are subject to entry in the minutes of the court session.The issues proposed by the parties are considered by the court, which may reject those that are not relevant to the case or fall outside the competence of the expert. The questions should correspond to the subject and nature of the examination being conducted, relate to the circumstances of the case relevant for its proper consideration and resolution, and take into account the possibilities of the examination being conducted. The specifics of expert research require precisely formulated questions set out in a logical sequence and taking into account the characteristics of the object under study. 

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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