Comments to article 84. Obtaining samples by a specialist or expert from a living person of the Civil Procedure Code of the Republic of Kazakhstan
1. The judge sends to the specialist the person from whom the samples are to be obtained, as well as the definition with the appropriate instruction. The definition should specify the rights and obligations of all participants in this procedural action.2. The specialist, on behalf of the judge, performs the necessary actions and receives the samples required for expert examination. The samples are packed and sealed, after which they are sent to the judge along with an official document drawn up by a specialist.3. After conducting the study, the expert attaches the samples to his conclusion in a packaged and sealed form.4. In the course of the study, the expert may produce experimental samples, which he reports in the conclusion.5. If the samples are received by a specialist or expert on behalf of the judge, he/she draws up an official document, which is signed by all participants in the procedural action and handed over to the judge for inclusion in the case file.6. The received samples in packaged and sealed form are attached to the protocol.1. If it is necessary to obtain samples from a person by a specialist, the judge directs this person to a specialist. A definition is sent to the specialist with an instruction to receive samples.The court's ruling specifies the rights and obligations of all participants in this procedural action.: persons participating in the case (Article 46 of the CPC); the person from whom the samples are obtained (Article 86 of the CPC); the specialist (Article 77 of the CPC).2. The specialist performs actions to obtain samples and execute these actions in the same manner as provided for in part five of Article 83 of the CPC.3. After conducting the study, the expert returns the samples to the court as an appendix to his conclusion, except in cases of complete destruction of the objects of expert research (part nine of Article 82 of the CPC). Compliance with the procedure for returning samples to the court is aimed at ensuring that, if necessary, a re-examination or additional examination is possible, as well as confirmation in case of doubt about the authenticity of samples sent for expert examination.
4. The expert who produced the experimental samples during the research indicates this in his conclusion. The specified samples are also attached to the expert opinion sent to the court.5. Upon receipt of samples on behalf of the judge, a specialist or expert shall draw up a protocol, which shall be signed by all persons involved in this procedural action. The protocol confirms compliance with the established procedure for obtaining samples and, as a result, the legality of collecting evidence (expert opinion) at this stage. The protocol is attached to the case file.6. The received samples in packaged and sealed form are attached to the protocol, which, together with the protocol, are attached to the case file.Additional comment1. Samples from a living person may be required for expert examination, which may include saliva, blood, and other secretions from the human body. On receiving samples from a living person, the judge issues a ruling indicating the type of samples, the person from whom the samples are to be obtained, and the specialist charged with carrying out this procedure.Obtaining samples reflecting the biological properties of a living person can only be done with the consent of the person from whom the necessary samples should be obtained. If the person from whom, at the request of the other party, the necessary samples should be obtained does not give his consent to receive them and further study without valid reasons, one should be guided by the provisions of part eight of Article 82 of the CPC, according to which such refusal should be regarded as a person's evasion from proving those circumstances that can be established through the study of the necessary samples, or as an evasion from refuting the arguments referred to by the other party, if the necessary samples had been obtained and examined.2. When carrying out this procedural action, it is necessary to adhere to the same rules as for conducting a forensic examination of living persons, stipulated in the Law on SED (Article 38).Samples from living persons may be obtained at a medical organization or in another place where there are conditions necessary for carrying out such a procedure and ensuring the rights and legitimate interests of these persons. It is unacceptable to obtain samples from a living person of the opposite sex if it involves exposing the face. This restriction does not apply to doctors and other medical professionals involved in carrying out these procedures (paragraph 3 of Article 41 of the Law on EDMS).3. Upon completion of the study, the samples obtained by the expert from a living person, taking into account the requirements of the objects, are packed in individual packages, sealed, provided with explanatory labels and handed over to the judge along with the expert's opinion.4. In the course of an expert study, in accordance with the methods, the expert can independently obtain the necessary samples from a living person. In this case, the procedure and conditions for obtaining samples are described by the expert in the relevant section of the research part of the conclusion. The samples obtained at the end of the study are packaged and brought to court together with the expert opinion.5. The procedure for obtaining samples is reflected in detail in the act of receiving samples from a living person, which is signed by the specialist (expert) and the person from whom the samples were received. The received samples with the certificate are sent to the court with a cover letter printed on the official letterhead of the organization and signed by the first head. The letter indicates the reasons for receiving the samples, the person from whom they were received, the packaging procedure and the storage conditions of the received objects.
6. The samples must be packed in individual packages, taking into account their characteristics, and explanatory labels must be applied to each package (type of samples, the person from whom they were taken), the date of receipt of the samples, the position, surname and signature of the person who took the samples. Each sample is sealed with the seal of the court or the organization in which the selection was carried out.This procedure is aimed at ensuring the reliability and admissibility of objects of expert research (part three of Article 87 of the CPC).
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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