A forensic examination may be ordered and carried out both before the initiation of the case and during the preliminary investigation. In this case, the decision is made by the procedural person, this is prescribed in Art. 195 Code of Criminal Procedure. Nevertheless, in practice, examinations are also appointed by interrogators. At the time of the decision to conduct the SME, the investigator draws up a resolution. After that, he introduces the parties to the criminal procedure with this document . In this case, a protocol is drawn up and an appropriate entry is made there, as stated in Art. 195 Code of Criminal Procedure.
Basic moments
The appointment and conduct of an SME is necessary in order to more thoroughly understand the details of a perfect crime. That is why the investigator is responsible for the examination, according to Art. 195 Code of Criminal Procedure. After all, it is he, as a procedural person, who appoints it and makes a corresponding decision. This document spells out:
- grounds for conducting research (for example, detection of beatings or other bodily injuries in a victim), which is usually done before the initiation of proceedings;
- all personal data of the specialist and the name of the institution;
- issues that need to be resolved (for example, how bodily harm was received);
- all materials falling into the hands of a state expert.
The investigator, as an official, should familiarize the parties to the criminal process with the decision on preparing for the EJM and explain to them their rights and obligations. This is recorded in the protocol in accordance with Art. 195 Code of Criminal Procedure. In what period of time from the moment the decision is made, the investigator should familiarize the parties with him, the code does not say.
Important
In cases where it is necessary to determine the cause of death of a citizen or the degree of harm caused, an examination is considered necessary. In addition, one cannot do without it even when law enforcement agencies have doubts about the sanity of the person who committed the crime. Especially when it is necessary to establish the age of the alleged attacker for the case, but due to the lack of documents, this is not possible. Features of the appointment and examination in such cases are clearly spelled out in Art. 195, 196 Code of Criminal Procedure.
However, forensic research is always carried out only at the discretion of the investigator. In this regard, the examination may be appointed in a number of other cases when the law requires it.
A comment
An examination in criminal proceedings is usually called judicial, regardless of at what stage of the investigation it is conducted. It is a study of materials provided by an investigator to a specialist. An expert may be appointed by the investigator, the interrogating officer and the court. The basis for the examination will be the need to obtain new knowledge in the case, which is necessary for a more detailed presentation of the whole picture of the crime that occurred. After its appointment, a procedural person must issue a resolution. The document shall indicate:
- expert and institution data;
- matters of relevance in the investigation of a crime;
- grounds for the study;
- materials transferred to the specialist.
After that, the parties to the case should be acquainted with this decision, as indicated by Art. 195 Code of Criminal Procedure. One can only agree with the comments added to it and note such an important point that not only the investigator, but also the court and the inquirer are entitled to appoint an examination. In some cases, an examination of the victims can only be carried out with the consent of their representatives. For example, when a person is eighteen years old. Moreover, many parents are very critical of the issue and do not want publicity, and for this reason refuse the examination.
Order
To carry out the examination, the investigator sends all the materials together with the decision to the management of the specialized medical institution. In this case, this document can be returned back to law enforcement agencies. But only if there is no specialist in this institution who could professionally conduct this examination. As a rule, it is carried out only in state organizations subordinate to the Ministry of Internal Affairs. But in exceptional cases, the examination can be entrusted to a specialist of a different level, while his rights and responsibilities are explained to him and the necessary materials and documents are presented. Art. 195, 196 and 199 of the Code of Criminal Procedure of the Russian Federation, the procedure for its appointment, forwarding of documents and mandatory implementation in a special institution are provided.
Acquaintance
Before the examination, the investigator must take several actions. As stated in Part 3 of Art. 195 of the Code of Criminal Procedure, the procedural person introduces the parties to the decree, which indicates who and why will conduct a study of the materials provided. In this case, citizens should be explained their rights guaranteed by the code. The parties to the criminal process must be familiarized with the document on the examination. In addition, they have the right to ask the investigator to introduce additional issues into the resolution, on which the expert would give an opinion. Also, the accused and his lawyer, the victim and the witness can challenge the expert and apply for a study in a particular medical institution. Then the parties to the process should be familiarized with the expert opinion.
With consent or not
Examination in the cases referred to in Part 4 of Art. 195 of the Code of Criminal Procedure, is carried out only when the witness and the victim look at it positively. If they are minors, then legal representatives make decisions for them. In addition, in practice, such situations often occur when parents are opposed to their child taking part in the examination. This is because people simply do not want third parties to know about the accident in their family (for example, when a daughter was raped). It is for these reasons that no expert examinations are carried out and the decision on the initiation of proceedings or the further conduct of the investigation is suspended or is generally left without movement.
Nuances
The legal analysis of certain norms of the Code of Criminal Procedure relating to the appointment and implementation of an examination once again proves the fact that the legislation in this matter is imperfect and contrary to the Constitution. For example, in practice, the suspect cannot fully exercise his right granted by the CPC and challenge the expert. This may be due to the fact that the investigator in the decision indicated only the data of the state institution, but did not register the name and initials of the specialist.
In addition, the question of the professionalism of experts who are engaged in research in the field of criminal process remains a controversial issue. Because the specialist, not having certain knowledge, will not be able to give the correct answers to the questions proposed to him. Thus, the fate of an innocent person who will be convicted in the presence of an incorrect expert opinion may be in jeopardy.