№2(13)(2013)

The face of Ukrainian forensics is a refined woman with velvet voice and an excellent taste that is seen in every gesture, detail of clothing and harmony in the design of the reception area. Having settled down, we can’t help noticing the photo of the beloved husband, at which Liudmyla Mykolayivna steals a glance every now and then, and a small decorative candle, whose shimmering creates a peculiar cozy atmosphere within the walls of a governmental body.

However, despite somewhat lyrical mood near the end of the working day, we are not going to discuss personal matters, but rather touch upon important legislative innovations and topical problems in the area of legal expertise.

Lyudmila Mykolayivna, last November the new Criminal Procedure Code (CPC) took effect. Have the Department of expert provision of Justice participated in drafting the CPC?

- I would say that we were involved indirectly, since the draft law reached us when it had already been submitted to the Verkhovna Rada and adopted as a basis. However, it included many of the provisions from the Regulations of the Ministry of Justice, which has already become the common reference for investigators and experts. It incorporated certain clarifying provisions from the comments to the Law of Ukraine “On Forensic Expertise” and the previous version of the CPC. We also suggested a number of items that, in my opinion, would improve this law in terms of forensic expertise regulations.

What is your professional opinion of the new version of the Code?

- If we compare this new edition of the CPC with the previous one, back from the 19960s, it is indeed a progressive law, in particular, as regards forensic expertise regulations – it gives detailed definition to procedural matters, describes the process of appointing and conducting a forensic expertise, expert initiative and demands to the contents and form of the forensic report.

Taking a closer look at the Code, we noted how thoroughly its creators approached the questions of fees, protection of experts and reimbursement of their expenses for the studies conducted. What caught our attention straight away was the provision regarding the disadvantaged individuals. The readers of “Independent AUDITOR” would find the following articles interesting: first of all, Art. 244 Consideration by the investigating judge of a request for engaging an expert, according to which the defense has the opportunity to can request conducting an expert evaluation at no cost, by providing copies of documents confirming the impossibility to engage an expert themselves due to lack of funds or other objective reasons. In this case, the investigating judge themselves appoints expertise, conducted by the government agency at budget cost. However, should the court find the defendant guilty, they must fully refund the cost of this expertise to the budget, thereby returning the state the funds spent.

With the new Code coming into force, private forensic experts now have the possibility to receive maximum refund for cost and time spent on the expertise. Previously, according to Resolution of the Cabinet of Ministers No. 590, such refund did not exceed a set limit, while now the expert may legally protest the amount of procedure expenses and demand from the defendant to pay the cost of expertise in full. In this case the law supports experts.

What inaccuracies or serious shortcomings in the Code would you bring to our attention first of all?

- Certainly, there are inaccuracies, though insignificant. Perfect laws do not exist; they need to be tested in practice. If the need arises to make certain improvements, this may be done while the new Code is already in force. In my opinion, it is essential to stipulate the different types of examinations: first-time, or initial examination: follow-up examination where experts consider the same questions posed to the first expert in the initial examination regarding the same research item; additional examination that includes auxiliary questions in addition to those posed in the initial examinations, and comprehensive, where experts from different fields investigate different questions and prepare individual reports, on the basis of which later a joint opinion is issued. It should be noted that such articles exist in other procedural codes, most explicitly stipulated in the Civil Code of Ukraine. That is why, in my opinion, similar approaches regarding appointment and conducting forensic expertise should be corresponding in norms of different forms of the procedure.

The new CPC empowers courts to call an expert for interrogation or appoint an examination in case of discrepancies in the reports issued by both parties. What will be the name of such expertise and will it not be considered a follow-up?

- Indeed, as per Art. 332 of the Criminal Procedure Code, when the court receives several conflicting opinions, and the interrogation of the expert fail to remove the identified contradictions, the court may authorize conducting an examination by an expert agency, an expert, irrespective of the request. In terms of the expert examination process this will be a follow-up examination, and according to the procedural signs – a follow-up expertise, which we mentioned earlier. At the moment I can’t tell you how such expertise will be called but, in essence, it will be a follow-up expertise. Most importantly, the court will be able to verify the facts in disputable questions and arrive at objective conclusions. I am confident that in future all inaccuracies will be taken into account. I believe that today, as the new CPC contains no concept of a “follow-up expertise” and in view of the above-mentioned article, it is necessary to use also the norms of the framework law, namely Art. 4 of the Law of Ukraine “On Forensic Expertise”, which holds that one of the guarantees for a correct expert’s opinion is appointment of a follow-up expertise.

We learnt recently that a new draft law “On Forensic Expertise” is being developed. Will it include the Department’s suggestions that were left out in the new CPC?

- you see, an expert is a participant in legal proceedings – this is a procedural matter, while the Law of Ukraine “On Forensic Expertise” is a special law, that is why it cannot directly stipulate procedural questions, as legislation must be harmonized and articles of the special law must be corresponding to the relevant articles of procedural laws. I am certain that all our specifications will be taken into account in the process of improving the new CPC. We have received a request to create a working group for purposes of monitoring the application of the new Code and, if necessary, preparing proposals on its improvement. Of course, we are going to participate, even more so, as at this particular stage of the CPC’s practical implementation both judges and investigators will have questions as to mechanisms of implementation of certain articles, which call for further elaboration and refinement.

Will the new law get a new name and are there reasons to that?

- Last year we joined our efforts with the Kharkiv Research Forensic Institute and other expert agencies of the Ministry of Justice to work on the new draft law and suggested numerous innovations. The name is also going to change into the Law “On Forensics” – the concept of “forensics” is much wider than “forensic expertise”, as it includes organizational activities of forensic examination, development of methodology and its realization.

If we compare the new draft law with the effective Law “On Forensic Expertise”, which innovations will be its centerpiece?

- Our current Law “On Forensic Expertise” includes only 24 articles and was adopted back in 1994. At that time it was the first law on forensic expertise among all post-Soviet countries. Later similar laws appeared in Azerbaijan, Russia, Turkmenistan, Kazakhstan, but our small law was the first and, in my opinion, its main provisions are well-defined, that is why expertise in our country has never been scattered.

The new law will be much broader – we are planning to include over 50 articles. Participation of public organizations will definitely be spelled out, as we have a fairly high percentage of experts who do not work in government institutions and combined into public organizations. To make things transparent, accountable, a citizen will have the right to refer to any expert, not only to the public. Back in 2004, when we were making changes to the law "On forensic expertise", in Art. 7 "The subjects of forensic activities" we treat as peers experts in government agencies and experts who do not work for the state. We did not dub them private, but rather defined them as self-employed professionals.

The new law will be more specific as regards arranging expert activities, pay attention to forensic experts’ social protection, because an expert is a participant of the process who is criminally liable for the issued opinion. That is why the specialist needs to be protected and, at the same time, enough secure. Material security provides stimulus for quality work with high moral standards.

The new CPC stipulates the defendant’s right to be present at the examination but the Code does not oblige the expert to carry out examination in the presence of the accused of the crime. Do you think it possible to provide for such obligation in the Law “On Forensic expertise”?

- If the defendant presents a petition to the investigator or investigative judge to be present during the examination and receives approval, he/she may observe the examination process, but at the same time he/she has no right to give any directions to the expert as regards the examination. I used to be an expert myself and I had similar situations. It is necessary to understand what sort of process this is. I am a trained expert graphologist and my expertise process was as follows: I would lay the samples on the table, examine them under the microscope, group them by similarities or dissimilarities, select a method or several methods of investigation, search for matches in selected letters, their elements, sense something, pick up the trail, doubt, compare, again compare against the writing under examination – this is like musical ear, you have got to have it, it is impossible to describe, especially to an outsider. Will the party present at the expertise be able to understand what I am doing and the algorithm of arriving at the conclusion? Probably, not. Of course the party is allowed to be present at conducting the expertise, it is provided for by the law. But will it make sense? At the same time it should be noted that there are other types of expertise, where the defendant’s participation is useful and quite necessary – forensic medical examination, forensic psychiatric, psychological expertise involves examination of the person themselves, as well as those conducted directly in the court. Today there exist 78 types of forensic expertise that is why it is impossible, inaccurate to speak in general, as each case should be considered separately.

What should be done in those instances when not all the questions given upon the expert’s judgment, fall within their competence?

- This point is explicitly stipulated in the new Criminal Procedural Code. As per Article 69, the expert is to give notice the person that appointed them or the court that authorized the examination, of failure to perform the expertise due to lack of the relevant knowledge. I would like to stress that absence of relevant knowledge in a given field is an important reason which has nothing in common with challenge of an expert in the case due to familial relations or previous involvement in examinations. Say, an expert is qualified in automotive merchandising expertise (when vehicles are examined as merchandise damaged in the road accident, the questions considered concern the parts to be replaced or repaired, and the cost of relevant works), but he is appointed to conduct automotive technical expertise that is designed to establish which of the parties involved in a road accident violated traffic rules. In such case the expert must refuse to issue an opinion due to lack of professional knowledge, i.e. expert qualification for conducting an automotive technical expertise. Quite a different matter is when an expert does possess relevant qualification, but their knowledge is insufficient in case if they do not follow changes in legislation or apply examination methods incorrectly. As a result, an opinion issued by such expert may be insufficiently valid or erroneous altogether. At such circumstances this question is subject for discussion by disciplinary expert qualification commission.

In which form will the refusal be documented?

- The Guidance has it as “notice of impossibility to issue an opinion”. It may remain unchanged, or else there may be a statement of refusal. Instead, as per part 7 Art 69 of the new CPC, “… expert immediately files a petition to the person who appointed an examination, or the court that authorized the examination on the subject of its (question’s) clarification, or informs of the impossibility to perform the expertise on the given questions…”. Based on the wordings in the article, the expert files a petition, and gives notice of failure to perform the expertise. Therefore, I believe the document should be entitled “Notice of failure to issue an opinion”. If this concerns courts, the expert will state the inconsistency of the question to his/her competencies. But there may as well be situations when an expert, during the examination on a series of issues, is able to answer two questions, while other one or two – not. In such case he/she has to give answers to those questions that he/she has the right to answer, and then write a report of the forensic expert with warnings on criminal liability under Art. 384 for deliberately false expert opinion and Art. 385 of the Criminal Code of Ukraine for failure without good cause to perform assigned duties. In these circumstances this will be regarded as an expert opinion, not a notice.

At present, under the new CPC, a lawyer is entitled to attract an expert on the defendant’s side to use his/her opinion as a source of evidence. Which name will bear the relevant document?

- The CPC does not explicitly specify the document, pursuant to which the defendant’s side is going to attract an expert. However some of its provisions (Art. 244) state that the party files a petition to attract an expert and the petition precedes the examination. Whether it will be a notice, petition or assignment doesn’t matter, the main thing is the document’s contents. If the defendant’s side brings to court an expert opinion, I think there will be no undue questions, as the expert will state which commission and when attested him/her; his powers, presence in the registry and legal right to carry out this examination will be clearly stated, and that he is warned about the liability for findings provided. As I see it, this has to be an assignment to the expert from the defendant’s side to conduct the examination. At least, such wording sounds logical in the context of the contents and terminology of the Code’s articles, besides, this will eliminate confusion with the party’s plea to the investigative judge or body to attract an expert.

It is interesting to know what you think about the terms for conducting examinations on cases under investigation since 20 November 2012. Will the Regulations provide for shorter periods for conducting forensic expertise and studying the materials for examination, as well as the terms for exercising by the investigators of the expert’s petition to provide additional materials for examination?

- What can I say about the terms of the examination? .. Of course, all experts would love to perform examination on time, duly and in a timely manner. Then why do we have problems with delays? The reason is the specifics of our business, which is quite difficult to limit by specific terms. In the process of examination additional materials, samples are often necessary. To get them, you need to write the petition. If investigators and judges know in advance what materials should be given and properly prepare the documents, the expert can get to work without sending a petition and will save time. And what happens in our situation? Investigators often change, the young ones come and we have to lose time on their adaptation; investigators' load is such that they even do not have time to get acquainted with the cases, not so much to collect samples and promptly appoint examinations. I recently inquired: 170 cases per investigator, this is the situation. Just speeding up the work of the expert is not possible, because they clearly understand, firstly, that people's lives depend on his opinion, and secondly, that his opinion provides for criminal liability, and they must be absolutely confident about the quality of their work, knowing that they could defend and argue examination during cross-examination in court, if appointed thereafter a follow-up or another examination. Therefore, even in the smallest doubt an expert again and again files petition for additional documents, samples, etc., and it all takes time.

Another objective reason is that over five years the staffing of expert institutions of the Ministry of Justice has not increased by a single employee. Number of appointed examinations grows year to year, but the number of specialists, unfortunately, does not change. Our budget is always short of money for the pay. And the load is growing, while the terms of conducting a simple examination are 10 days, the complex may take 3-4 months or even half year. There may occur such that require a comprehensive study of various issues and demand attracting 3-5 experts in various fields, especially high-profile criminal cases, which frequently are given priority in addressing, because we understand that those are people arrested and in jail, that's why civil and economic cases are postponed for later. A vicious circle arises. In many criminal cases experts work until late at night, and sometimes even seven days a week and received praise from law enforcement agencies for quality work in short time. Meanwhile separate rulings come from judges on taking measures towards these experts in connection with violation of the deadlines of examinations in civil and commercial cases. That is the situation today with the terms of examinations.

Now the issue of registration of all criminal cases in the period from 20 November to 20 December is quite acute. Number of appointed examinations during this period increased by 50-80%, depending on the region. At the end of the year, before the holidays, in three days a monthly norm of cases came in. To carry out such amount is physically impossible. Now the issue of registration of all criminal cases in the period from 20 November to 20 December is quite acute. Number of appointed examinations during this period increased by 50-80%, depending on the region. At the end of the year, before the holidays, in three days a monthly norm of cases came in. To carry out such amount is physically impossible. We have seven institutes and the eighth center with around 1033 professionals working who annually conduct up to 80 000 examinations. The situation is really serious. We submitted proposals to the Ministry of Finance the past three years to increase spending on wages to increase staffing level in expert institutions of the Ministry of Justice. However, the question to date, unfortunately, is not solved. If the situation with the increasing number of experts still does not change, then soon we will face simply a collapse of the system.

In other words, reduction of terms in the near future is not even discussed?

- At the present time, no. I am not afraid to talk about it out loud, because it's true. We need to shout about this. There is a danger that the system will simply collapse. You know, we have already formed such expert groups working for the state at the level of patriotism and enthusiasm. Firstly, the work itself is very interesting, and secondly, they realize the desperate situation of citizens awaiting expert opinions. In addition, most experts are people of a different mindset, mostly scientists, interested in the research process, its details, nuances and, of course, quality results.

Regarding the terms, I believe that there are no issues that can not be resolved. More so if law enforcement agencies, prosecutors, and citizens, especially the state itself are interested in this. So far we are keeping the situation. We have already put the question before law enforcement authorities we will seek again.

In your opinion, what should professional forensic expert be like? What character traits should he have? What experience and skills must he operate with?

- First of all - morality and professionalism. Without this, nothing will happen. Curiosity and an exaggerated sense of responsibility for the fact that there are people behind you and it is upon you is laid the duty to establish the truth on the fact in a particular case. You know, as a lawyer, professor, L.E. Vladimirov said in the days of Tsarist Russia: "The experts who base their opinion on any science, are scientific judges whose sentence is a solution of a special issue in the case." What the expert can prove , will be the basis for judgment.

Deciding the destinies, justifying, defending - this should be treated in a special way. Everyone has their own values in life and profession. For me, value is when my work deserves kind words and increases circle of pleasant acquaintances and friends. I began to notice that, having worked an expert for 10 years, I arrived at the following professional conclusion: to maintain peace of mind and sleep easily, I have to tell it like it is. This is the way I am used to, and otherwise I just can not work. Maybe for me it is easier to keep this position than to others, because I consider myself independent, both morally and financially. I'm quite secure, even without a cottage and a country house. I get paid - but hardly have time to run about the shops and spend money. Besides you cannot wear everything, so I do not pay mind to it, I have other values.

Lyudmila, today you head a state structure but in a conversation you recall with enthusiasm your previous practice of expert graphologist. Tell us whether you regret the choice of a ministerial office?

- Today I'm a civil servant with a responsible attitude to work, but as an official myself never saw. To the Ministry of Justice I came in 1997 when the previous officer transferred to the court and there was a vacant post with a rather narrow specialization, such experts were few. As then I had recently defended my thesis in the appropriate direction they immediately turned to me. I cried, so much I did not want to go. At the Institute, I was engaged in scientific activities, wrote articles, developed new techniques, conducted examinations and was so into it that I even took the work home. But colleagues at the institute posed the question under such angle as if I was avoiding taking responsibility and did not want to help organize the work of expert institutions such as the Ministry of Justice and help them, my colleagues. So I decided to try my hand on a new post. Later I realized that in order to protect judicial examination, there must be the rule of law. And I began to develop regulations. Today we have 15 regulations of the Ministry of Justice, five resolutions of the Cabinet of Ministers, not taking into account a special law and procedure codes in whose developing the Ministry of Justice participated. We have created a registry of experts, developed regulations for private experts, the procedure of scientific development, for the first time at my initiative made the register of methodologies and procedure for its maintenance. A lot has been made in terms of the organizational work.

We actually already have a new law in the bug-free form, we are going to consider some drafting issues and will submit it for approval. If we make this law, I will consider that I completed the task assigned to me. The system is already built, and it works. I have not heard much complaints about it, of course, there are some nuances, but uncritical. I would prefer that there were no complaints about the work of neither private nor government experts.

Are you currently doing scientific work?

- Yes, I am involved in scientific research, to me as a public servant it is not prohibited. Now we are preparing a manual for private experts, especially for those who are to take an exam for qualification as a forensic expert. We have already published a similar guide for professional experts in forensic economic expertise. I also write articles, participate in the drafting of reference books. Actually this is very interesting. I think when I retire, I will teach forensic examination, we will see.

They often adopt our scientific and practical experience in the CIS countries, as in Ukraine today forensic examination is more developed, regulated and subordinated than in Russia, Byelorussia. Here back in 1999 the Registry of all certified court experts was formed, which is not available in Russia, where all the experts are divided into two categories - public and "whoever wants" surely in the presence of relevant education. In our country expert is both a participant of the process, scientist and expert on forensics. In Ukraine everything is organized, well spelled out, there is a regulatory act on every function and everything works. Therefore, China, Azerbaijan, Kazakhstan, and Belarus want to cooperate and exchange experience with us. Especially experts from Russia are willing to participate in conferences.

Finally what would you wish to the readers of 'Independent AUDITOR'?

- What can I wish? Of course, that they had no occasion to appoint legal expertise, everything in their lives was good and resolved without legal expertise. And if you suddenly have to cooperate with us, that the examinations were carried out promptly and efficiently.

And personally for auditors, I will note that in our country nobody forbids to be simultaneously an auditor and a forensic expert. So the more auditors become forensic experts, the more examinations we will conduct and in shorter time complete them. So an independent auditor always has the opportunity to become an independent expert!