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Forensic expertise: opportunities and limits

For the recent several years there is an active discussion in the expert community on the necessity and transition paths at a qualitatively new level of a forensic expertise in law enforcement activity. While the policy conducted by representatives of the administrative branch of expert community aims at bureaucratization of forensic expert activity and creation of a closed corporation of “competent experts’’. Such policy presents certain risks, as it implies to provide the experts an access to conduct a forensic expertise based not on the criteria of their specific knowledge in the field of science, technology, arts or craft, but on the mere fact of obtaining а document of the established pattern.

Transition to a new level

Among the principal arguments in favor of the necessity and transition paths at a qualitatively new level of a forensic expertise in law enforcement activity are: the internationalization of economic and social processes, as well as the expansion of the areas of interests of Russian citizens and companies abroad and foreign citizens in the Russian Federation. As a consequence, there is more need in the use of the expert conclusions in foreign and international courts.

According to the expert community, the introduction of standardization of forensic expert activity constitutes a reliable condition for the transition at the new quality of forensic expertise. At the same time, the participants to discussion admit that, when conducting a forensic expertise, an expert initiative and a creative approach to the choice of methods and means, indispensable for solving the set of expert tasks, traditionally play a major role.

Along with the problems of standardization of forensic expertise there are also interconnected matters of classification of forensic expertizes, the way they are reflected in the list of expert specialties, as well the problems of the certification and validation of methodological support of forensic activity.

The most acute issues, requiring an immediate solution, according to the expert community’s opinion, are the unification and standardization of approaches to the classification of forensic expertizes and to the system of experts training, the need for attestation and certification of forensic experts, regardless of their place of work or departmental affiliation, on the basis of uniform qualifying requirements.

This problematic is vividly discussed in mass media and also constitutes the topical subject of discussion on different forums and conferences, conducted by the expert community.

On the way to uniform standards

The State does not stand apart. Below are the most important governmental acts, targeted at bringing a forensic expert activity to the uniform standards:

–The Order of the Ministry of Justice on 22.04.2010 ? 94 creates the Advisory Board on the problems of forensic activity under the Ministry of Justice of the Russian Federation.

–The Order of the Ministry of Justice on 27.12.2012 ? 237 establishes the List of types (kinds) of forensic expertizes, conducted within the federal budget forensic institutions under the Ministry of Justice of the Russian Federation and the List of expert specialties, for which the right to conduct independently forensic expertizes in federal budget forensic institutions of Ministry of Justice of the Russian Federation is provided.

–The Order of the Ministry of Justice on 06.06.2014 ? 123 establishes the Regulations on the organization of scientific and methodological support of forensic expertise of federal budget forensic institutions under the Ministry of Justice of the Russian Federation.

–The Order of the Federal Agency for Technical Regulation and Metrology (Rosstandard) on 13.05.2015 ? 561 creates the Technical Committee on Standardization “Forensic Expertise” (so-called Committee ? 134).

–The Order of the Ministry of Education and Science of the Russian Federation on 28.10.2016 ? 1342 establishes the federal state educational standard of higher education on the specialty 40.05.03 “Forensic Expertise” (specialty level).

Previously the analogical acts of the Ministry of Education and Science of the Russian Federation were adopted regarding the specialties 31.08.10 “Forensic-medical expertise” (the order of the Ministry of Education and Science of the Russian Federation on 25.08.2014 ? 1052) and 31.08.24 “Forensic psychiatric expertise” (the order of the Ministry of Education and Science of the Russian Federation on 25.08.2014 ? 1066).

The most interesting document in this regard is the Order of the Federal Agency for Technical Regulation and Metrology (Rosstandard) on 15.01.2003 ? 11 “On the organization of works on the conduct of forensic expertise in civil and arbitration cases, cases on administrative violations in the field of standardization and ensuring the uniformity of measurements and conformity assessment (certification)”, by which the object-semantic circuit of standardization of expertise in the field of standardization is closed.

Starting point of the discussion

The Program of the VII Saint-Petersburg International Legal Forum includes a Discussion Session, devoted to the issues of standardization of forensic expert activity and related matters. Svetlana Smirnova, the Director of the Russian Federal Center for Forensic Expertise under the Ministry of Justice of the Russian Federation, is introduced as the Moderator of this Session.

The objective of the discussion is the analysis and systematization of contemporary practices of implementation of standardization in forensic activities, the particularities of taking the expert initiative and realization of creative approach to forensic expert activity. Thus, during the Discussion Session will be treated the following topics:

–the interconnection of notions of expert initiative, creative approach to the process of forensic examinations and the requirements of scientific and technological progress;

–the international trends in the field of standardization of forensic activity;

– the role of standardization while creating a Eurasian forensic expert space;

–the discussion of opportunities of the use of innovations of the national legislation on standardization when performing forensic expert activity;

–standardization as the effective instrument of implementing a quality management system: the Russian and foreign experience;

–harmonization of the judicial proceedings needs and the elaboration of international, interstate and national standards in the field of forensic expertise;

–the role of the Interstate Technical Committee on standardization ‘’Forensic expertise’’ in the formation of high-level technical competence of expert organizations;

–modern approaches to education and improvement of professional skills of experts in the context of standardization: both national and international experience;

–the prospects for the development of a draft international standard on the examination of forensic expertise facilities at their location.

The starting point for the discussion on any aspect of forensic expert activity lies in the definition of the subject of discussion, that is the notion of forensic expertise, since the forensic expert activity consists in the appointment and conduct of forensic expertise.

There is no special legislative act in the Russian federation, devoted to forensic expert activity. A bill ? 306504-6 ‘’On the forensic expert activity in the Russian Federation’’ is under consideration of the State Duma in the second reading. At the same time, the Russian legislation does not contain a uniform definition of the concept of forensic expertise. The notion of forensic expertise appears in all procedural laws and other legislative acts, however in each of them – the content and the form of this concept vary.

According to the sixth paragraph of the article 9 of the Federal law on 31.05.2001 ? 73-FZ ‘’On State forensic activity in the Russian Federation’’, a forensic activity is a procedural action, consisting of a conduct of investigations and providing expert opinion on issues, whose resolution requires specific knowledge in the field of science, technology, art or craft and which are put before the expert by the court, judge, inquiry body, person conducting inquiry, investigator in order to establish the circumstances to be proved in a particular case.

The first part of the article 79 of the Civil Procedure Code of the Russian Federation states: if in the course of a trial the questions requiring special knowledge in various fields of science, technology, art, craft arise, the court shall appoint an expert examination. The conduct of expertise shall be instructed to a forensic expert institution, a specific expert or a group of experts.

The Arbitration Procedural Code of the Russian Federation does not provide in its turn the definition of forensic expertise, but establishes, that a forensic expertise shall be appointed with the objective to clarify the issues arising during the trial, which require specific knowledge (the first part of the article 82 of the Code), and the scope and content of the issues, which should be the subject of the assigned forensic expertise, are determined by the arbitration court (the second part of the article 82 of the Code). The Code does not specify in which areas the expert should possess special knowledge, leaving this question at the discretion of the court. The similar provisions are included in the article 79 of the Code of Administrative Judicial Proceedings of the Russian Federation.

The provisions of the article 26.4 of the Code of Administrative Offences of the Russian Federation are solidarized with the article 79 of the Civil Procedure Code of the Russian Federation and also permit the appointment of the expertize in the scope of the administrative process only in case of necessity to use specific knowledge in the field of science, technology, art or craft.

While the Penal Procedure Code of the Russian Federation once again brings us to a broader definition of the reason for appointing the expertize. Thus, in accordance with the first part of the article 57 of the Code the expert is the person, possessing specific knowledge, and appointed by a special order, established by the present Code. The expert conclusion – the content of investigation and the conclusions on issues, raised before the expert by a person conducting the proceedings in the criminal case or by the parties, presented in a written form (the first part of the article 80 of the Code).

Thereby, we can state, that a different perception of one procedural action, the same in its essence, content and consequences, has formed in different litigation processes.

Today, it’s hard to say why it has happened this way: whether this was due to some historical reasons or whether the lawmakers of procedural acts inserted intentionally a different content to the notion of forensic expertise.

Does not respond to the challenges of time

The next fundamental controversy in the area of forensic expert activity regulation consists in the fact, that none of the procedural laws obliges the court or other independent procedural persons or persons, involved in the case, to give preference to state expert institutions when appointing the expertise or choosing the competent expert. Equally, the law does not give to the expert study, conducted by the state expert institution, a pre-determined force.

All the departmental regulations, which regulate the forensic expert activity, apply only to state forensic institutions and obviously were enacted with the purpose to protect these institutions from the pressure of expert services market. They do not apply to independent experts.

From the one side, this looks like some kind of demonstration of “order” in state system of forensic examination as opposed to “unorganized marketeers”. From the opposite site, it’s difficult to imagine in which way the state expert institutions will be capable to prepare and certify their own staff for the right to independently conduct types of forensic expertise that have never existed before, the emergence of which is caused by explosive changes, occurring in science, engineering, technology and so on.

Let me introduce an example from my own experience, considering the study of possibility and technology of repairing a reinforced concrete structure from high-strength concrete-based compounds used for high-rise construction, exposed to long-term fire attack. The only institution on the post-Soviet space, which has an undisputable authority for its competence in such type of questions – the Research, Design and Technological Institute of Concrete and Reinforced Concrete named after A.A. Gvozdev, did not cope with this task. Such compounds are produced by a limited number of world manufacturers, the recipe and technology for them is developed individually for each specific object, so there are no pre-defined standards.

As a result, a competent expert opinion was obtained from a private structure performing certain types of work on the high-rise facilities, led by the only Russian scientist who knows content of industry standards of the RF, EEC and US.

This is only one example. Bitcoins, blockchain, big data, instant messengers, cloud technologies, genetic engineering, composite materials, alternative energy sources and much more, all this becomes an integral part of the surrounding technogenic landscape. The consequences of the appearance of some of them may be unpredictable. In addition, in parallel with the development of high technologies their low-quality copies, counterfeit releases and even quack products appear. Such kind of situation may arise in any kind of activity.

Is it supposed to introduce expert specialties in all these spheres? I am not sure.

Taking a quick glance on the list of types of expertise, conducted in state forensic expert institutions, as well as at the list of expert specialties, for which the right to independent conduct of forensic examinations is granted, it is hard not to notice that the state forensic system is in no hurry to respond to the challenges of time. The content of the lists does not go beyond the traditional types of expertise.

Neither escapes from the attention the desire of state officials to take a dominant position in relation to “private market players”, since it’s obvious who is going to be certified and who is going to impose the certification and on what conditions. If to summarize the theses of the explanatory note to the draft federal law «On forensic expert activity in the Russian Federation,» the aspirations of the authors can be subjected to two main goals:

–the development of uniform requirements to the qualification of state and private forensic experts, their certification and validation of research methods;

–the establishment of attestation (certification) commissions.

The bill: will the expectations be justified?

Justifying the need for adoption of a bill, the lawmakers refer to such circumstances, as: the implementation of a judicial reform, the dynamics of growth of a number of courts and judges, the development of private property institutions and the entrepreneurship. All these factors, from their point of view, have led to a significant increase in the requirements imposed to the participants of judicial proceedings, to the quality of conduct of expertise, the preparation of qualified forensic experts, the conduct of forensic examinations on the basis of a uniform scientific and methodological approach in order to expand the use of expert conclusions.

The law-makers expect, that in the result of the adoption of a bill the mechanisms of forensic expert activity will be installed, which will contribute to shorten the time for conducting forensic examinations and will meet the needs of contemporary litigation. They also suppose, that the control of expert production and its methodological support will be provided, as well as the access to the profession of forensic expert will be granted to real professionals.

To sum up, I would like to note the following. The proposed solutions, aimed at the standardization of forensic expert activity, do not resolve the fundamental problems of law, such as the unification of notions “forensic expertise’’ and “forensic expert’’ in different branches of law, do not trace a clear line between the content of related concepts ‘’expertise’’, ‘’expert opinion’’, ‘’expert assessment’’.

The degree of influence of technologies not only on life conditions of society, but also on the essence of a legal profession is obviously underestimated.

All this makes us think that behind such sonorous phrases, as ‘’expert initiative’’, ‘’creative approach to the conduct of forensic expertise’’ lies the attempt on the one hand, to preserve the monopoly, and on the other hand – to go beyond the own constructed barriers, but not to bring the industry to a new quality.