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Институт экспертизы в уголовно-процессуальном законодательстве зарубежных стран (сравнительный анализ правовой системы Республики Узбекистан и зарубежных стран)
Научные статьи
24.03.15 11:25


Институт экспертизы в уголовно-процессуальном законодательстве зарубежных стран (сравнительный анализ правовой системы Республики Узбекистан и зарубежных стран)

 



 
СРАВНИТЕЛЬНОЕ ПРАВО
Астанов И. Р.
2(81)2015
В данной статье отражен анализ норм Уголовно-процессуального кодекса Республики Узбекистан, связанных с институтом экспертизы, а также их сравнительный анализ с уголовно-процессуальным законодательством зарубежных стран. Вместе с этим в статье проанализированы нормы зарубежных стран, которые можно имплементировать в законодательство Республики Узбекистан.
Целью данной статьи является защита прав и свобод человека и развитие института экспертизы посредством совершенствования национального законодательства.

The analysis and comparison of the criminal procedure legislation of foreign countries serve to improvement of our legislation and to increase of efficiency of these norms in their application in practice. In particular, it would be expedient to begin this work with studying of the legislation of CIS countries.

In particular, 17 articles in the Criminal Procedure Code of the Russian Federation are devoted to expertise, and they embody important aspects of this institute. The rights and duties of the expert are enshrined in one article (article 57) of the Criminal Procedure Code of the Republic of Uzbekistan, the notion of the expert and his rights and duties are stated in two separate articles (67-68 articles).

Unlike the Republic of Uzbekistan Criminal Procedure Code, in the Criminal Procedure Code of the Russian Federation we do not find the reflection of the rule of law of article 70 of the Criminal Procedure Code of the Republic of Uzbekistan, which is devoted to refusal of the expert. In turn, improvement of article 98 of the Criminal Procedure Code of the Republic of Uzbekistan and introduction of the norm in it, according to which the person which is carrying out expertise, shouldn't participate in this case as the expert, or the expert principle shall be broken, is expedient.

In our opinion, it is necessary to add to the article 184 of the Criminal Procedure Code of the Republic of Uzbekistan the new article 1841, where information on the indication of the expert should be presented, as in the legislation there are gaps concerning the indication of the expert.

Proceeding from the above, new article 1841 should be stated in the following edition:

Article 1841. Penance of the expert. «The indication of the expert is the evidence, which is given for specification and an explanation of provisions of the conclusion, after its representation by the expert. The expert is warned about criminal prosecution for perjury.»

     In our opinion, it will be expedient to bring the indication of the expert in a row of proofs, by addition of word «indication» in article 81 of the Criminal Procedure Code of the Republic of Uzbekistan after the words «expert opinion». As, on a row with indications of the witness, the victim, the suspect, accused and the defendant, the indication of the expert also may be of great importance.

In case the false expert opinion is the basis to criminal liability and thus won't be mentioned the indication, our offer will serve as elimination of this problem. Because the expert, in a row with submission of the correct conclusion on criminal case, can bring law enforcement agencies in delusion by giving a false testimony.

Chapter 27 of the Criminal Procedure Code of the Russian Federation, devoted to carrying out of judicial expertise on the contents, differs from Chapter 22 of the Criminal Procedure Code of the Republic of Uzbekistan, which is called «expertise». In particular, article 196 is called the bases for purpose of expertise and includes 4 bases for purpose of expertise. Even if article 173 of the Criminal Procedure Code of the Republic of Uzbekistan is devoted to the matter, has wider contents and a form (9 bases), it doesn't meet the requirements of development tendencies of science and equipment.

Besides, the rules of the article 197 of the Criminal Procedure Code of the Russian Federation connected with participation of the investigator in judicial expertise, don't find the reflection in separate article of Criminal Procedure Code of the Republic of Uzbekistan. According to this norm the investigator has the right to participate in judicial expertise, to observe actions of the expert, to ask interpretation of these actions and to ask the questions. And still introduction of this situation in the expert opinion is required.

And in legislation of the Republic of Uzbekistan, the question of powers of investigator in the course of judicial expertise remains open, and it contributes delusion in judicial and investigative practice. Therefore there is a need of introduction into the Criminal Procedure Code of the Republic of Uzbekistan of the rule of law defining powers of investigator on its participation in judicial expertise.

In the article 198 of the Criminal Procedure Code of the Russian Federation the rights of the witness, the victim, the suspect accused both the defendant to carry out expertise are established.

    Unfortunately, in our legislation the rule of law on the matter doesn't cover the right of the victim and the witness.

In our opinion, it limits possibilities of the victim and the witness on fulfillment of this right, and we consider that is expedient introduction of the rights of the victim and the witness to destination and to carrying out expertise. Because all participants of criminal trial have equal opportunities.

The article 199 of the Criminal Procedure Code of the Russian Federation is devoted to transfer of materials of criminal case to expertise and to compliance with this norm, the head of establishment has the right to return case papers and objects of research in case of insufficiency of the data transferred to the expert. It is necessary to point out that rules of this norm are established in different articles of the Criminal Procedure Code of the Republic of Uzbekistan. Except this rule of carrying out commission expertise are reflected in the article 200 of the Criminal Procedure Code of the Russian Federation, and rules of carrying out complex expertise are regulated by the article 201 of the Criminal Procedure Code of the Russian Federation. It testifies that the Criminal Procedure Code of the Russian Federation has the logically correctly constructed structure that in turn serves for convenient application of norms, increases the efficiency of criminally procedural legislation concerning this institute.

In the Criminal Procedure Code of the Russian Federation of the rule of carrying out expertise come to an end with articles about the expert opinion (article 204 of the Criminal Procedure Code of the Russian Federation) and interrogation of the expert (art. 205 of the Criminal Procedure Code of the Russian Federation). Article 204 of the Criminal Procedure Code of the Russian Federation define contents of the expert opinion, article 205 of the Criminal Procedure Code of the Russian Federation establishes not carrying out interrogation without submission of the expert opinion. Entering of these norms into our legislation is expedient and demanded.

Proceeding from the above it should be noted that norms of the expertise regulating institute are established in more systematized order, and it is possible to use some ideas of the Russian law in the domestic legislation for improvement of this institute.

In the Criminal Procedure Code of Estonia the relations connected with expertise are settled in 13 articles. In particular, Art. 58 of this law is called «Expertise», where the bases of purpose of expertise and a condition of carrying out expertise are reflected. The Art. 59 of the Criminal Procedure Code of Estonia deals with the expert and the expert opinion. This norm opens concept of the expert, value and an order of its making the conclusion; the Art. 60, where the rights and duties of the expert are presented, has general idea and not completely governs given the relations.

In particular, obligations of the expert are concluded only upon arrival on request of the investigator or the judge, and also criminal prosecution for making the false conclusion. The rights of the expert are reflected by only four parts.

Chapters 16 of the Criminal Procedure Code, which also is called expertise, contains article 156, devoted to an order of purpose of expertise. According to this article, in need of carrying out expertise, the investigator adopts the resolution on purpose of expertise in which specifies the bases of its carrying out. According to the second part of this article, expertise can also be carried out before initiation of legal proceedings.


 

The article 157 of the Criminal Procedure Code of Estonia is devoted to the rights of the suspect or accused at carrying out expertise, has similarities with Republic of Uzbekistan legislation; the article 158, which belongs to an order of carrying out expertise, says that if expertise is carried out in a place of establishment of expertise, the investigator sends the resolution on carrying out expertise to this establishment and imposes the obligation for carrying out expertise on one or several employees.

Unlike in the Criminal Procedure Code of the Republic of Uzbekistan, the article 159 of the Criminal Procedure Code of the Republic of Uzbekistan is devoted to the room of the suspect, accused in medical institution. According to this norm, in case of need carrying out medical or psychiatric expertise of suspect accused shall be located in medical institution.

The article 160 is devoted to the expert opinion and the expertise act. According to this norm the expert opinion is the document dawned up on the basis of internal belief and results of research which is conducted by use of special information.

The article 161 of Estonia establishes that interrogation of the expert is carried out for receiving an explanation according to the expert opinion, and it is reflected in the protocol; article 162 defines rules of acquaintance of suspect accused by the expert opinion, the act of carrying out expertise and the protocol of interrogation of the expert. Other norms are devoted to expertise which are carried out directly in the course of judicial proceedings and have the identical contents with standards of the domestic legislation.

The Criminal Procedure Code of the Republic of Kirgizia, adopted on May 29, 1999, contains 22 articles on settlement of institute of expertise. The article 62 defines the status of the expert and, unlike Criminal Procedure Code of the Republic of Uzbekistan, according to this norm the expert can be subpoenaed by the process parties freely without court judgment or the resolution of the investigator. This article has the norm forbidding determination to the expert of the questions, concerning the right. In our opinion, introduction of this norm in our legislation is expedient. In particular, there is a need to add norm in the following edition after 2nd part of the article 172 of the Criminal Procedure Code of Republic of Uzbekistan: «... purpose of expertise and determination of questions on legal questions' is forbidden.

The Article 63 of the Criminal Procedure Code of Uzbekistan is devoted to the rights and duties of the expert and besides forbidden provisions are reflected in him on his actions. According to this article it is forbidden to conduct communication on the questions, connected with participants of process, collecting of information for independent research, carrying out, without the permission of the investigator or court, researches, which can change a form or qualities of the objects sent for research. Entering of this norm into the Criminal Procedure Code of Republic of Uzbekistan provides improvement of institute of expertise.

Standards of the Criminal Procedure Code of the Republic of Kirgizia connected with refusal of the expert (article 78), the expert opinion (84), with participation the investigator in carrying out expertise (article 201) have the identical contents with standards of the Criminal Procedure Code of Republic of Uzbekistan. The article 199 of the Criminal Procedure Code of RK contains norm, which doesn't occur in laws of other CIS countries. It is said that in case the psychological state of the person doesn't allow, it can be not acquainted by the decision on purpose of expertise.

The Criminal Procedure Code of Armenia was accepted on July 1, 1998 and its article 85 is devoted to concept of the expert. According to this norm, the expert is the person drawing the conclusion on the basis of knowledge of a certain sphere of science, technique, art, the profession, not being interested criminal do helping criminal case on the basis of the decision on carrying out expertise.

We will examine the provisions, which are unforeseen in Criminal Procedure Code of Republic of Uzbekistan. For example, the expert has the following duties: 1) to show certifying knowledge of a certain sphere, the relevant document to the body which considers this case; 2) to refuse making the conclusion in case he had to know, but has to leave a field of activity and inform appropriate authority, in case of the insufficiency of the transferred materials; 3) or considered specification (clarification) of additional circumstances, which he deemed necessary and important; 4) to transfer data on expenses and the estimate of expenses on request of the body appointing expertise; 5) to transfer data on a field of activity and knowledge of the requirement corresponding to bodies, an explanation about the relations with other participants of criminal case; 6) not to leave an arrival place without the permission of appropriate authority during participation of investigative or judicial and investigative actions; 7) to observe the legal requirements of court, the prosecutor, and the investigator. And also, the Criminal Procedure Code of Armenia reflects the following rights of the expert: 1) participation in investigative and other procedural actions with the permission of appropriate authority, as these circumstances can be related to an expertise subject; 2) to ask a clarification, in case of incomprehensibility of the questions asked by the investigator on expertise subject; 3) to show objection on legality and validity of actions in which he participated; 4) to ask compensation of expenses.

Unlike the Criminal Procedure Code of Armenia, «to refuse making the conclusion in case it had to know, but has to leave a field of activity and inform appropriate authority, in case of the insufficiency, the materials transferred to it», «or considered specification (clarification) of additional circumstances which he knew necessary and important» are the rights of the expert according to the Criminal Procedure Code of the Republic of Uzbekistan.

According to the article 243 of Criminal Procedure Code of Armenia, expertise is carried out on the basis of the investigator's or the prosecutor's decision, in case of need of special information. And according to the article 244 the decision of appropriate authority on carrying out expertise reflects the bases of purpose of expertise, material evidences, questions raised before the expert, the name of expert establishment or initials of the expert.

The article 250 of the Criminal Procedure Code of Armenia is devoted to the expert opinion and according to it after carrying out researches the expert writes the written conclusion and approves with his signature. Then he sends it to his facts appointing expertise.

The article 252 of the Criminal Procedure Code of Armenia is called interrogation of the expert, and according to this norm, interrogation of the expert without transfer of the conclusion is forbidden.

According to the article 88 of Criminal Procedure Code of Moldova of 2003 the expert is a person, who is not interested in criminal case which and will be able to draw the conclusion in the special sphere of knowledge. This article contains the rights and duties of the expert and has similarities with standards of the Criminal Procedure Code of Republic of Uzbekistan.

According to the article 142, which is called appointment and carrying out expertise, expertise is carried out in case of need of special information for identification and finding of proofs and possession of the judge of this knowledge doesn't exclude carrying out expertise. The statement of the circumstances, which haven't been reflected in the decision on purpose of expertise, but established necessary for research is required.

    The article 143 of the Criminal Procedure Code of Moldova contains provisions for carrying out expertise in six points and doesn't include the norm reflected in our legislation (Art. 173 of the Criminal Procedure Code of Republic of Uzbekistan): provisions for detection of need and possibility of treatment, the patients with venereal and other infectious diseases subject to drug addiction and chronic alcoholism, existence of narcotic substances and their types, falsification of bank notes, securities and other documents, the technical reasons of explosions, accidents and other extraordinary cases. The article 144 Criminal Procedure Code of Moldova is devoted to an order of carrying out expertise, it contains the bases on removal. Resolutions on carrying out expertise, expertise empowers at the initiative of the expert of a base on for carrying out expertise. The part second of the article 150 of the present Code is devoted to carrying out expertise in specialized expert institutions, demands confirmation by the signature receiving by the expert of explanations of his rights and duties and the prevention of criminal liability for making the false conclusion. In this regard, the conclusion and indications of the expert are brought in the resolution and the protocol.

In case expertise is made by the initiative of one of the parties of criminal trial, between the expert and such party of criminal trial should be concluded the agreement. Such party asks the expert questions which have to be specified and noted during expertise.

In our national law system carrying out expertise according to the statement of the parties for the sake of protection of the interest in criminal trial isn't allowed. In our opinion, such opportunity for expertise initiation, except obligatory expertise appointed and carried out on special circumstances, has to be given to the parties, which are participants of process, and their lawyers. This, in turn, will serve for fulfillment by the lawyer of his right for submission of proofs.

The most important is that it will serve to implementation of the principle of independence of the lawyer.

The part second of the article 153 of the Criminal Procedure Code of Moldova devotes interrogation the expert, consolidates the norm according to which it is forbidden to make interrogation before submission of the expert opinion and its studying. Stipulation of such rule in part second the 186 articles of the existing Criminal Procedure Code prevents implementation of interrogation of the expert by the judge and the investigator before submission of the conclusion.

Standards of the Criminal Procedure Code of Azerbaijan of July 14, 2000, concerning expertise, are very close to standards of the national criminal procedure legislation. However, part one of article 271UPK of Azerbaijan, which is called the expert conclusion, reflects the term (1 month) of expertise representations which isn't present in our legislation.

The beginning of this term is defined by receiving a judgment or the investigator or the appeal of the parties or the lawyer about carrying out expertise is included by the term of transfer of the expert of the conclusion. In our opinion, restriction of carrying out expertise with a certain term can have negative impact on its quality, but on a row with it, observance of total period of following is required.

Articles 165-174 of Chapter 12 of the Criminal Procedure Code of Japan are devoted to expertise institute. According to article 165 of this law, the court has the right to appoint the expert of the persons with special knowledge and practical experience.

According to the article 166 (an oath of the expert), the expert undertakes to swear honestly to carry out research. According to the article 167 the court takes out the act on the room of accused in medical institution for carrying out the expertise connected with its mentality or body. Article 168 says that the expert, in case of need, has the right to carry out expertise and to examine a body accused of his house at house arrest or in the ship in case judicial review is carried out in open water space. The expert has to arraign permission at an entrance to the house of the accused. Performance of these actions in trial doesn't demand the permission phenomenon.

In the conclusion it should be noted that fruitful use of experience concerning carrying out expertise on criminal cases serves as an important factor for improvement of the domestic criminal procedure legislation and increase of efficiency of this institute in our country.




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Дорога мира Вьетнама и России

Ирина Анатольевна Умнова (Конюхова) Зав. отделом конституционно-правовых исследований Российского государственного университета правосудия


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