On forensic examination in criminal cases
Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated November 26, 2004 No. 16.
In order to improve judicial practice, develop common approaches to the preparation, appointment of expertise, assessment of its results, as well as the use of special knowledge in court proceedings, the plenary session of the Supreme Court of the Republic of Kazakhstan
DECIDES:
To clarify that, in accordance with article 270 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), an expert examination, as a specific procedural form of evidence in a criminal case, is appointed in cases where factual data relevant to the case can only be obtained as a result of a study of the case materials conducted by an expert based on special scientific knowledge.
The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
To draw the attention of the body conducting the criminal process to the need for strict compliance with the criminal procedure legislation when appointing and conducting an expert examination, while ensuring the rights of the accused, the victim, the witness, as well as the witness entitled to protection, the subject of the expert examination, and the person against whom compulsory medical measures are being conducted.
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
The conduct of a forensic examination may be entrusted only to persons specified in the first part of Article 273 of the CPC and in the Law of the Republic of Kazakhstan dated February 10, 2017 No. 44-VI "On Forensic expertise in the Republic of Kazakhstan":
employees of the judicial examination bodies;
persons who carry out forensic expertise on the basis of a license;
on a one-time basis - to other persons with special knowledge who have been assigned by the court to conduct an expert examination.
The footnote. Paragraph 3, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 14 (for the procedure of entry into force, see paragraph 2); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
During the preliminary hearing of the case, a decision on the appointment of an expert examination may be made by the court only at the request of the parties in cases where the appointment of an expert examination is not related to the assessment of evidence, and its conduct is mandatory in accordance with article 271 of the CPC.
If circumstances arise in the main court proceedings, the establishment of which requires special scientific knowledge, the court, both at the request of the parties and on its own initiative, is obliged to decide on the need and possibility of conducting an appropriate examination. At the same time, an expert examination to establish circumstances that may lead to an expansion of the prosecution's limits is appointed only at the request of the prosecution.
The court of appeal, at the request of the parties or on its own initiative, has the right to order a forensic psychiatric examination if it is necessary to establish in the case: the mental state of the convicted person when there is doubt about his sanity or ability to independently defend his rights and legitimate interests in criminal proceedings; the mental state of the victim, witness in cases where there is doubt about their the ability to correctly perceive circumstances relevant to the case and give evidence about them.
Another examination may be ordered by the court of appeal only in cases where it is possible to conduct it based on the materials available in the case and additionally submitted by the parties that do not require examination at a court hearing.
If, during the consideration of the case by the appellate instance, it is deemed necessary to conduct an expert study, then in such cases the examination and assessment of the conclusion obtained are carried out in accordance with parts four and five of Article 429 of the CPC.
The competence of the court of cassation instance does not include the conduct of expert examinations. If it is necessary to conduct an expert study of the materials, including those that have been additionally received and are important for making the right decision, judicial acts may be annulled by them and the case sent for a new judicial review.
The footnote. Paragraph 4, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 14 (for the procedure of entry into force, see paragraph 2); dated 03/31/2017 No. 3 (effective from the date of the first official publication); dated 12/11/2020 No. 6 (effective from the date of the first official publication).
A decision on the appointment of forensic examinations can be made both if there are expert opinions on the issues under investigation in the case, and if there are none.
In cases where no expert examination was conducted during the pre-trial investigation, but it is necessary to conduct it based on the case file, the court, in accordance with articles 281, 282 of the CPC, appoints a single, commission or comprehensive expert examination.
If the results of the examination are not clear enough, and this cannot be eliminated by questioning the expert, or when the expert has not fully resolved the issues raised before him, or if additional issues related to the previous study need to be resolved, in accordance with parts one and two of Article 287 of the CPC, an additional examination is appointed, the production of which may be entrusted to the same or another forensic expert.
If the previous expert opinion is insufficiently substantiated or its correctness is in doubt, or the procedural rules for the appointment and conduct of an expert examination have been significantly violated, the body conducting the criminal proceedings shall, in accordance with part three of Article 287 of the CPC, appoint a second expert examination, the conduct of which is entrusted to a commission of judicial experts. The forensic experts who conducted the previous forensic examination may be present during the re-examination and provide explanations to the commission, but they do not participate in the expert examination and the preparation of the conclusion.
A comprehensive examination in accordance with the first part of Article 282 of the CPC is appointed in cases where the establishment of a particular circumstance is impossible by conducting separate examinations. In order to conduct a number of studies based on the use of various special branches of knowledge, experts of various specialties are entrusted with the production of expertise.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The body conducting the criminal proceedings must take the measures provided for by law to investigate the circumstances necessary for the expert to give an opinion, then invite the parties to submit in writing the questions that, in their opinion, should be put before the expert, and listen to the opinions of other participants in the process on them.
The parties also have the right to indicate which objects are subject to expert examination, as well as to whom the expert examination may be entrusted and to challenge the person invited as an expert.
Issues relevant to the proper resolution of the case should be formulated in the decision on the appointment of an expert examination, which should take into account that the questions posed to the expert cannot go beyond the special knowledge of the person charged with conducting the examination.
The decision on the appointment of an expert examination may not address legal issues that are not within the competence of the expert, as well as other issues that are not relevant to the case.
When appointing an expert examination, it is necessary to check whether the requirements of the CPC were met when detecting, removing, fixing objects of expert research and whether they are available.
If objects that are to be seized by court order are subject to expert examination, their removal, packaging and delivery for expert examination should be carried out with the participation of relevant specialists by the authorities responsible for executing the court order in this part.
The description of the objects submitted for examination, their appearance, quantity, and packaging must be compared by experts with the description of these items in the decision on the appointment of the examination, in the labels on the packaging, and reflected in the examination report.
The parties have the right to submit objects, documents and other material evidence as objects of expert research. Excluding them from the list of such, the body conducting the criminal process is obliged to issue a reasoned decision.
With the permission of the body conducting the criminal proceedings, the victim, the suspect, the accused, as well as the witness who has been subjected to an expert examination, and the person against whom compulsory medical measures are being conducted, if his mental state allows it, have the right to be present during the examination.
If it is necessary to conduct a forensic psychiatric examination, it should be borne in mind that the placement of a person under examination in a psychiatric hospital is allowed in compliance with the requirements of articles 14, 279 of the CPC.
If a person in respect of whom a forensic psychiatric examination is required has a temporary mental disorder (reactive state) that prevents the examination, and therefore requires his treatment, then the placement of such a person for compulsory treatment in a psychiatric hospital can only be carried out by court order. In this case, in accordance with paragraph 2 of the first part of Article 45 of the CPC, the criminal proceedings are suspended.
The compulsory placement of a person who is not in custody in a medical institution for the conduct of a forensic psychiatric examination is allowed only by a court decision, and for the conduct of a forensic medical examination - respectively by a court decision or with the approval of the prosecutor.
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
A court decision on the appointment of an expert examination is mandatory for execution, both for expert institutions in terms of conducting research, and for other bodies (persons) charged by the court with the duty to remove, package and deliver objects of expert research.
According to article 341 of the CPC, the appointment of an expert examination is the basis for postponing the hearing in the case. After receiving the expert opinion, the trial continues.
Courts should monitor the time period for conducting an expert examination and, if necessary, request expert institutions about the readiness of an expert opinion.
The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
The expert's opinion should be examined and evaluated. When examining the expert opinion, it should be borne in mind that it does not have any advantages over other evidence and has a predetermined strength, it is subject to analysis, comparison and evaluation in conjunction with other evidence in the case.
The court's disagreement with the expert's opinion must be motivated in the verdict or resolution.
11-1. The expert opinions of the persons indicated in the first part of Article 273 of the CPC (an employee of the judicial examination bodies; a person engaged in forensic expert activity on the basis of a license and included in the State Register of Judicial Experts; another person who is entrusted with conducting an expert examination on a one-time basis in accordance with the procedure and conditions provided for by law) do not have any advantages over each other.
The footnote. The regulatory resolution was supplemented by paragraph 11-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
To clarify that the assessment of the expert's opinion consists in consistently addressing a number of issues, of which the most significant are:
have the research objects related to this case been presented and are they sufficient for expert research;
has an expert study been carried out with sufficient completeness, bearing in mind that the completeness of an expert study is directly dependent on the use of diverse, complementary research methods and on the coverage of all objects submitted for examination, the resolution of all questions posed to the expert;
is the expert's conclusion based on scientific provisions;
did a competent person carry out the examination, did the expert exceed the limits of his competence;
whether the requirements of the criminal procedure law were observed during the appointment and conduct of the examination.
The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
It is necessary to pay attention to the requirements of Article 283 of the CPC for an expert opinion, which must comply with them both in form and content.
In the conclusion of the experts who conducted the re-examination, it must be indicated on the basis of which research data they came to the conclusion that the previous expert's conclusion was correct or erroneous.
The conclusion of the comprehensive examination should indicate which studies, to what extent each expert conducted and what conclusions each of them came to, after which a general conclusion is formulated, which is signed by experts competent in evaluating the results obtained.
In case of disagreement between the experts, each of them or a group of experts may give a separate opinion.
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
Significant violations of the criminal procedure law committed during the discovery, seizure and fixation of objects of expert research, the appointment and conduct of an expert examination may result in the recognition of the expert's conclusion as inadmissible evidence.
Such violations may include:
violation of the procedural procedure for the preparation and referral of objects of expert research for examination;
conducting an expert study (part of the study) by persons who were not assigned to conduct this examination;
conducting an expert examination by a person who did not have the right to conduct an expert examination or, according to the law, was subject to recusal;
violation of the rights of participants in the process during the appointment and conduct of an expert examination;
other violations, if they actually affected the completeness and comprehensiveness of the expert study, the objectivity and validity of the expert's conclusion.
The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
In accordance with article 374 of the CPC, the interrogation of an expert during the trial may be carried out only after the announcement of the conclusion in order to clarify, clarify or supplement it.
Oral explanations, clarifications or additions by an expert are evidence only in part and within the limits of the previously given written opinion.
The interrogation of an expert, in accordance with the requirements of part four of Article 285 of the CPC regarding circumstances unrelated to his conclusion, which became known to him in connection with the conduct of forensic psychiatric, as well as forensic medical examination of living persons, is prohibited.
The footnote. Paragraph 15, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 14 (for the procedure of entry into force, see paragraph 2); dated 03/31/2017 No. 3 (effective from the date of the first official publication).
In accordance with article 111 of the CPC, a specialist's opinion is evidence in a criminal case.
The expert's conclusion, like the expert's conclusion, has no advantages over other evidence and has a predetermined strength, is subject to analysis, comparison and evaluation in conjunction with other evidence in the case.
The footnote. Paragraph 16 is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 11.12.2020 No. 6 (effective from the date of the first official publication).
The procedural costs associated with the examination by the staff of the expert institution are collected from the convicted person or his legal representative to the state's income, or are accepted into the state account.
Expenses related to the examination incurred by persons engaged in forensic expertise on the basis of a license, as well as by persons who do not have one, but who are involved in a one-time examination, by order of the body conducting the criminal process, are collected in their favor after they submit a calculation.
When making a final decision on the case, the court, in accordance with the requirements of paragraph 12) of the first part of Article 390 of the CPC, is obliged to resolve the issue of the fate of the objects that were the object of expert research. In this case, the provisions of article 118 of the CPC should be followed.
The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 3 (effective from the date of the first official publication).
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.
Chairman of the Supreme Court
Republic of Kazakhstan
Judge of the Supreme Court
Republic of Kazakhstan,
Secretary of the Plenary
meetings
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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