For criminal, civil and administrative cases, forensic examinations are diverse. Therefore, it is sometimes not possible to put them within the framework of state institutions. Usually they carry out the procedures that are prescribed most often.
Often a situation arises when a non-governmental forensic examination is required . Consider these cases, as well as the functioning of the organization in which it is conducted.
When do they turn to non-governmental forensic institutions?
The need for these organizations arises when the relevant government agencies are too overloaded. In addition, non-governmental organizations are contacted in the following cases:
- when the relevant examinations are not carried out in state institutions;
- the procedures are feasible, but the experts are too overloaded or absent due to illness, vacation, other reasons;
- the court, the investigator, and the parties involved want the non-state judicial examination to be carried out in a particular place, since a highly qualified specialist is working there;
- victim, suspect or accused, other participants doubt the impartiality of public institution employees.
The law, in turn, does not prohibit the involvement of these organizations.
Qualification
The level of such organizations is certainly different. Often, highly qualified specialists with appropriate education work in them. There are few full-time experts in them. But almost everywhere employees work, who can be involved in assessing the most difficult cases.
Basically, non-state forensics is required in civil and arbitration proceedings, and “statesmen” are loaded with criminal cases. At the same time, it is typical for such organizations to work much more quickly than in state-owned organizations. In addition, in addition to examinations, they provide other services, for example, provide advice to legal entities and individuals.
By law, this type of activity is carried out without a license. At the same time, highly qualified specialists work for organizations of the corresponding profile, for which expertise is the main professional occupation.
Sometimes these institutions are created at higher educational institutions. Then the staff are teachers and professors in the forensic departments. A similar organization operates within the framework of the Moscow State Law Academy under the name of the “Commonwealth of Experts of Moscow State Law Academy”.
The experts
Forensic experts can be full-time employees or acquire status as such by a court ruling to conduct research in a particular case. Then he is attributed to the institution in which the examination is scheduled. The document indicates data, education, specialties and work experience. In addition, the court must verify the competence of the person, as well as make sure that he is not interested in the case. Such qualities plus objectivity are mandatory for the implementation of this type of activity.
Experts and expert institutions
In practice, it happens that these two concepts are mixed. This happens if the decision does not indicate the data of the expert, limiting only to the details of the institution.
Consider the example when a socio-humanitarian examination was appointed and commissioned to conduct an assistant professor of the university. The decision indicated these persons. They also took a liability warning subscription from him. But the service agreement was concluded not with him, but with a commercial company, from where he received the money. Naturally, such circumstances can raise doubts about the results of the examination, which is what happened. Therefore, you should be careful and conclude a contract either with a specific person or with an organization that has the status of an expert institution.
Another practical example is the following. For the examination, the investigator appealed to the LLC. The organization, as it turned out, only positioned itself as an expert. The general director of the company entrusted the study to his employee and explained his responsibility. However, the conclusion of the defense was reasonably questioned by the conclusion that the contract was concluded with an organization in the form of an LLC. This is clearly not consistent with the status of an expert organization. Thus, the general director did not have the authority of the head of the expert organization and did not have the right to personally explain the responsibility to his employee. Therefore, such actions are unacceptable.
Expert Institutions
There are many offices that advertise themselves as providing peer review services . But let's not forget that their main goal of activity is commercial. The directors of these organizations are not subject to the rights and obligations that the heads of expert institutions have. Usually, third-party specialists with the necessary knowledge are contracted to carry out activities in such offices.
Therefore, it is necessary to understand the status of a legal entity. The definition is given in article 5 of paragraph 60 of the Code of Criminal Procedure. According to him, an expert institution is recognized as a forensic institution in which it is possible to conduct forensic examination in accordance with this law.
Thus, it should be assumed that this is an institution that, under civil law, is a non-profit organization. Making a profit in it is not the main goal. Forensic science in its essence cannot be aimed mainly at obtaining benefits. Therefore, it should not be a commercial organization either.
An example of expert organizations
Nevertheless, if the organization with the legal form of LLC employs experts who can afford to carry out the relevant examination, of course, you can and should contact them. The main thing is to follow all the formalities so that the results of the study are not in doubt.
So, it is well known in its LLC profile, in which judicial and non-state construction expertise is carried out - Garant Expert. High-class specialists work in it. And that is why this company is often trusted to conduct the most complex expert research.
Another, no less respected organization is the Center for Judicial and Non-State Expertise LLC Index. The company provides services by conducting emergency, construction, electrical and other research. Many types of licenses have been obtained. The Center for Judicial and Non-State Examinations “Index” is recognized by the judicial authorities, government organizations and other government agencies, as well as large companies in Russia and abroad.
Commission
According to the ruling of the Supreme Arbitration Court of December 20, 2006 under number 66, state and non-state judicial examination can be carried out in the relevant institutions, or persons with special knowledge can be brought to it.
The problem described above, when the study is appointed by the LLC, is often repeated when commissioned by an expert institution. To avoid inaccuracies, a specific person - an expert should be appointed for the study. And the head of the relevant organization is obliged to clarify the responsibility to him. Thus, the court needs to check in a particular institution for the presence of a full-time employee who has the necessary knowledge and qualifications.
Certification
The fact that in the process of proof it is allowed to use experts who work for a non-governmental center for forensic examinations, can significantly expand the scope of obtaining evidence in court proceedings.
This became especially important when certification was introduced in Russia in this area. For this purpose, an institute of voluntary certification was created within the framework of the RFCE under the Ministry of Justice . Moreover, in it:
- test and recommend certain methods for the use of forensic examinations;
- evaluate the competence of experts and confirm it.
The procedure is carried out in accordance with the law "On Technical Regulation". When an expert uses unified methods in his work, taking into account the requirements of qualifications in both state and non-state institutions, this helps to obtain more accurate, reliable and reproducible results. The certification body is the Russian Federal Center for Judicial and Non-State Expertise (index (Moscow) - 109028) under the Ministry of Justice. Briefly - RFCSE.
According to this system, methodological materials, recommendations for expert activities within the country are tested and issued. International standards are also used. So, a non-state forensic examination is carried out abroad after passing accreditation of the relevant institutions according to the ISO 17025 standard. In Russia, it is held under the number GOST R ISO / IEC 17025-2000.
The requirements of the latter turned out to be much wider than the international standard. And in 2008 they adopted a new GOST R under the number 52960 - 2008. It defined specific requirements for equipment for laboratories and staff qualifications. The main place was given to the training of specialists.
Thanks to the institute of certification, it became possible to monitor the quality of the work of experts and recommend the most knowledgeable candidates to a judge. An expert is primarily evaluated depending on his qualifications, knowledge and accumulated professional experience.
A non-governmental center for forensic expertise, as a rule, operates according to the same rules of organization and management as the state one. In its constituent documents, it means that the main type of activity is the conduct of forensic examinations and assistance in this process. And in the orders and corresponding instructions the rights, duties and responsibilities of the head, his employees and all other issues relating to professional activities in the forensic examination bureau are indicated.
Non-governmental institution: rights and obligations of the head
Despite the fact that the law does not contain information about the rights and obligations of the head of the considered status of an expert organization, in fact the same powers apply to him as to the head of a state institution. So, his duties include:
- commissioning a study to one or a group of experts who have sufficient knowledge to answer questions posed by the court;
- clarify to the appointed expert the responsibility for giving a false opinion and take a subscription about it;
- to control the timing of production, as well as the completeness and quality of work, at the same time without interfering with the process to ensure the principle of expert independence;
- send a ready expert opinion with relevant materials to the person who appointed the study;
- ensure confidentiality of the process and research results.
LLC, a center for forensic non-state examination, with which an agreement has been concluded to conduct an examination, may require the authorized body to reimburse the costs associated with:
- compensation for the storage of objects intended for examination by a transport organization;
- transporting them to their destination;
- storage after examination;
- liquidation from fires, explosions or other consequences resulting from the study of objects of increased danger.
As for the remaining rights and obligations, they should be regulated in accordance with the status of the research center for judicial and non-state examinations. So, the specialist is personally responsible for giving a knowingly false conclusion in accordance with applicable law. But the head, as a rule, bears the burden of property responsibility for the low-quality service provided, since it is he who signs the accompanying documents relating to the procedure.
Liability Subscription
When a state or non-state forensic examination is carried out, the law prescribes to take a subscription from an expert stating that he has been warned of criminal liability for knowingly wrong conclusions. This is done on a special form.
If a non-governmental forensic examination is carried out outside the walls of the relevant institution, then the document must be signed before the start of the investigation at the moment when the investigator hands this person a decision on the appointment of the procedure.
Non-state experts, usually in the conclusion itself, namely in its introductory part, indicate that they are warned of criminal liability.
Subscription
Some non-state experts who do not have the status of an individual entrepreneur independently make imprints of seals, which they then affix on the relevant documents. Of course, such a paper cannot be recognized as legal.
The subscription must be issued on a separate form and remain with the investigator. Additionally, the text itself is no longer provided in the conclusion. It should contain only information that the specialist received a warning about criminal liability and that all rights were explained to him.
At the same time, the subscription may be contained in the conclusion itself, but it is issued accordingly. It indicates the position, surname and information that the examination is entrusted, and also clarifies the rights, obligations and responsibilities. The date and signature of the expert should be indicated here.
Conclusion
Thus, a forensic examination is an action that includes the appointment of a forensic examination, research and drawing up a conclusion using special knowledge. The center of judicial and non-state examinations, on the one hand, and the authorized body that appoints the procedure, on the other, must clearly observe all the subtleties of procedural actions. Otherwise, studies may be deemed inadmissible.
If, for example, a non-state forensic medical examination is appointed, it is advisable in the decision to indicate the data of a particular expert. Then the rights of all participants in the trial will be respected.