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Participation of the party of charge and the protection party at appointment and expert testimony in court manufacture in criminal trial

In modern conditions in the criminal trial there is an increase of a role of use of the special knowledge, connected with necessity of maintenance of the rights and legitimate interests of participants of process, increase of level of scientifically-methodical maintenance of expert testimonies in court, obektivizatsiej process of proving in the conditions of competitiveness of the parties.

To use of special knowledge, especially in criminal trial, the extensive literature, thus a role of use of special knowledge in lawyer activity is devoted opened in insufficient degree [37]. In M.O.Baeva and O.J.Baeva's publications a number of the typical errors supposed by participants of process and at appointment and manufacture of expert testimonies in court, and during investigatory actions at which carrying out the expert participates is resulted. The conclusion about necessity of the decision of a problem of use of special knowledge by the parties and their representatives [38] is besides, formulated.

We divide J.K.Orlova's point of view that the inspector and court can actively use special knowledge in the course of proving on criminal cases without attraction of the expert and the expert, but only when as a result of such use there is visually perceived fact (for example, the revealed invisible trace) which becomes accessible and clear for all participants of investigatory action, even those who does not possess special knowledge. Thus we exclude cases when expert testimony in court according to item 196 UPK the Russian Federation should be appointed without fail.

Special knowledge is defined as system of theoretical knowledge and practical skills in separate areas of a science, technics, art or craft. This knowledge and practical skills are got as a result of special preparation and finding of professional experience. They are used for the decision of the questions arising in the course of the criminal trial [39]. It visually proves to be true on an example of expert preparation of employees FBU RFTSSE at Ministry of Justice of Russia and all system subordinated to Ministry of Justice of Russia of establishments. According to Z.M.Sokolovsky, special knowledge represents «... Set of the data received as a result of vocational training, creating for their owner possibility of the decision of questions in any area» [40]. A number of scientists to special knowledge is carried also by legal knowledge [41].

JU.K.eagle allocates some forms of use in the criminal trial of special knowledge. To them, in its opinion, concern: judicial and extrajudicial examinations, departmental investigations (check), consultation and the explanatory of the expert, directory activity, interrogation of expert witnesses. J.K.Orlovym comes out the assumption that extrajudicial examination carried out in not remedial form, is quite often spent behind criminal case frameworks. The document received as a result of extrajudicial examination, the expert's statement is not. This statement is given reason by that circumstance, that extrajudicial examination is spent outside the limits of the criminal trial. Thus its results carry to sources of the evidentiary information, namely to documents-proofs according to item 84 UPK the Russian Federation [42].

The lawyer as the representative of the party of protection, is allocated by the right of gathering and representation of subjects and documents which can be recognised subsequently by material and other proofs.

Realisation by the lawyer of the granted right, active use of special knowledge within the limits of criminal, civil, arbitration processes, introduction in legal proceedings of principles of controversy, demand development of positions and the conclusions which are available now in the scientific literature on the given question, and also in many respects define an urgency of research of problems of participation of the parties and their representatives in judicial-expert activity.

As shows the analysis of judicial-investigatory practice, under references of the party of protection not state judicial-expert organisations are engaged in performance of extrajudicial examinations basically. For example, workers of these organisations whom now becomes more and more, carrying out expert researches, formulate the recommendations, estimating various materials, copies of materials of criminal cases including, and also other subjects or the documents given by lawyers and concerning event of crime. Results of such researches are called differently. By results of interrogation of lawyers, follows, that results of extrajudicial examination (called by the examination claim, the certificate of expert research, consultation of the expert etc.) As a rule, are represented by the protection party by the settled tradition at a stage of a judicial legal investigation. During the further trial the protection party declares the petition for their familiarising with business materials. Besides, in structure «other documents» results of these researches are applied on the petition for appointment as court of repeated examination, to the petition for an exception of the expert's statement available in business, as the proof which are not admissible [43].

The demands are made to experts of the state judicial-expert establishments, essentially differing from the similar requirements shown to persons, working in not state judicial-expert organisations. For today there is actual a problem of an estimation of competence of workers of not state judicial-expert establishments or not state court experts as the authorised bodies and the corresponding mechanism of an estimation by the current legislation it is not provided.

Quality of expert manufacture in the state judicial-expert establishments is supervised by practice of reviewing of expert opinions, experts periodically pass certification on the right of independent manufacture of expert testimonies in court. For not state judicial-expert establishments check of competence by their accreditation on conformity to requirements of international standard ISO/MEK 17025 and the national standard of GOST R 52960-2008. Competence of not state court experts can be estimated now within the limits of voluntary certification in the Systems organised FBU RFTSSE at Ministry of Justice of Russia or NP «Chamber of court experts».

In not state judicial-expert organisations it is offered to pay the big attention to perfection of personnel work; to introduction of practice of cross reviewing (reviewing of expert's statements in collective with the subsequent open discussion); to carrying out by the head of individual educational work with the court expert; to increase of a professional standard judicial etc. [44]

Legal regulation of activity not state sudebnoekspertnyh the organisations is absent now. Along with not state judicial-expert organisations possessing high authority at pravoprimenitelej and the qualified personnel first of all presented were workers of the state it is judicial - expert establishments, there are the numerous organisations which are engaged in manufacture of expert testimonies in court and use of special knowledge in not remedial form which competence raises the proved doubts. Till now there are resolved many problems connected with realisation of the uniform scientifically-methodical approach to carrying out sudebnoekspertnyh of researches in state and not state sudebnoekspertnyh the organisations, absence of uniform requirements to acknowledgement of competence of workers of the judicial-expert organisations irrespective of their organisation-legal forms. On the decision of the specified problems in a field of activity of the judicial-expert organisations the draught federal law «About judicial-expert activity in the Russian Federation» which is in the State Duma at a stage of preparation for consideration in the second reading [45] is directed. Acceptance of the given law will promote putting in order in sphere of the judicial-expert activity which is carried out not state judicial experts, and, hence, to increase of efficiency of use of special knowledge by the parties and their representatives in modern legal proceedings.

Any petitions in connection with appointment and manufacture of examinations, with acquaintance with expert opinions are extremely seldom declared by the parties and their representatives. According to A.V.Kudrjavtsevoj, at acquaintance with the decision by which examination is appointed, with the expert's statement any petitions in connection with examination appointment only in 1,4 % of cases that testifies that the rights of participants of process in connection with appointment and examination carrying out generally are not guaranteed [46] were declared.

It is caused by that various participants of process, except for, perhaps, state bodies which appoint examination, are actually discharged of process of its appointment. As a rule, the inspector or the investigator appoint examination. It means - from the given legal proceeding the protection party, thereby a principle of competitiveness during preliminary investigation practically is eliminated not realised. It is represented, that absence of corresponding guarantees of the rights and legitimate interests of representatives of the party of protection in this situation naturally flashes one more problem: a lack of special knowledge in the field of spent expert testimony in court at convicted (suspects), at their defenders, and also the persons appointing examinations (inspectors, investigators and judges), as professional lawyers [47].

According to E.R.Rossinsky, owing to that judicial-investigatory workers do not possess necessary special knowledge, they cannot state a corresponding estimation neither scientific validity of conclusions, nor correctness of a choice and application of methods of expert research [48].

According to ch. 3 items 240 UPK the Russian Federation only after the court investigated the expert's statement in session of the court, it can include it in a sentence as the proof. But, as a rule, all judicial inquiry is limited to expert's statement announcement. As well as other materials of business, the expert's statement it is disclosed in the presence of the parties. Thus under the consent present at session of the court the research part of the conclusion can not be disclosed. In some cases announcement supplements interrogation of the expert which usually informs on full conformity of expert researches to available techniques, and repeats the formulated conclusions [49].

The decision about manufacture of examinations should be shown the protection party as is a direct duty of the person who have appointed examination. Execution of this duty provides convicted, to the suspect the right of defence. We do not consider cases (often enough meeting on practice) when the presentation of this decision occurs together with a presentation of the ready expert's statement. Eradication of this vicious practice and creation for this enough of the bases - a direct duty of the legislator.

According to ch. 2 items 74 UPK the Russian Federation the expert's statement are defined as one of the provided kinds of proofs. In the cases described above at its reception it is broken simultaneously at once two principles of criminal trial. First, the principle of competitiveness of the parties (item 15 UPK the Russian Federation), in - the second, - a principle of maintenance of the right of defence convicted and suspected (item 16 UPK the Russian Federation) is broken. It is represented, what exactly therefore the expert's statement has no serious validity.

The constitutional Court of the Russian Federation in December, 2003 officially recognised, that gross infringement of the right of defence is absence at convicted (suspect) of the information on the expert prior to the beginning of spent expert researches [50].

The considered practice of appointment and manufacture of examinations is interfaced to infringement of the legislation and the conclusions received thus even the state experts should, in our opinion, admit as incompetent evidences (ch. 3 items 7 UPK the Russian Federation). A.A.Tarasov, has expressed opinion, that for observance of requirements of the operating criminal procedure legislation examination appointment should pass, at least, in two stages. At the first stage the protection party is necessary for acquainting with the decision about expert testimony in court appointment. Thereby possibility of realisation of the rights connected with statement of questions and definition of a circle of objects of research is given to the protection party. At the second stage when the concrete expert or the commission of experts becomes known, the person who has appointed expert testimony in court, should acquaint the party of protection with personal structure of experts. It is necessary for making that the protection party could realise the right to tap of any of these persons [51].

During dissertational research questioning for the answer to the questions connected with an estimation by persons is spent, having the right to appoint expert testimonies in court, reliability of expert's statements.

On a question: whether «you Are assured of reliability of the expert's statement executed in the state judicial-expert establishment?»

The majority of respondents has informed, that practically always (68 % of judges, 85 % of inspectors, 51 % of lawyers); as a rule (27 % of judges, 8 % of inspectors, 36 % of lawyers). About possibility of reception of the doubtful expert's statement executed in the state judicial-expert establishment, has declared 5 % of judges, 7 % of inspectors, 9 % of lawyers. A small amount of the interrogated lawyers (4 %) were at a loss with the answer.

On a question: whether «you Are assured of reliability of the expert's statement executed in not state judicial-expert organisation?»

The majority of respondents has informed, that practically always (54 % of judges, 63 % of inspectors, 60 % of lawyers); as a rule (30 % of judges, 32 % of inspectors, 15 % of lawyers). About possibility of reception of the doubtful expert's statement executed in not state judicial-expert organisation, has declared 8 % of judges, 5 % of inspectors, 19 % of lawyers. A small amount of the interrogated judges (8 %) and lawyers (6 %) were at a loss with the answer.

On a question: whether «you Are assured of reliability of the expert's statement executed by the expert, the being worker of the judicial-expert organisation?» More than half of respondents has informed, that practically always (60 % of judges, 53 % of inspectors, 54 % of lawyers); as a rule (32 % of judges, 40 % of inspectors, 21 % of lawyers). About possibility of reception of the doubtful expert's statement executed by the expert, not being worker of the judicial-expert organisation, has declared 8 % of judges, 14 % of inspectors, 17 % of lawyers. A small amount of the interrogated inspectors (2 %) and lawyers (8 %) were at a loss with the answer.

By results of questioning it is possible to note the following - at judges, inspectors and lawyers there is no bias concerning unauthenticity of the expert's statements executed out of the state judicial-expert establishments. Turns on itself rather high percent of the interrogated lawyers which suppose reception of the doubtful conclusion if the expert is not the worker of the state judicial-expert establishment (about 20 % interrogated). For comparison the similar answer concerning workers of the state judicial-expert establishments - distances of 9 % interrogated.

In Federal Republic of Germany each of the parties participating in business, has the right to invite any expert at the choice and the discretion and to give the commission to constitute to its the corresponding expert judgement. The private (extrajudicial) expert judgement and the expert's statement received as a result frameworks of expert testimony in court, have the various remedial status. Thus the expert's statement is independent

The proof, and the private conclusion is not considered in a separation from explanations (indications) of the party [52].

The expert and the expert as two remedially various figures possessing special knowledge, are allocated in all kinds of legal proceedings. The inspector; the judge; the investigator; the chief of an investigatory department; the expert; the expert; the persons possessing deep knowledge of area technicians, sciences, crafts and arts, but not allocated with laws of procedure of the expert or the expert; operative workers concern subjects of use in legal proceedings of special knowledge [53]. Thus the basic carrier of special knowledge it is necessary to define the expert as the remedial form of use of special knowledge at delivering justice is expert testimony in court.

Now expert testimony in court can be spent at possible check of messages on a crime. Appointment and expert testimony in court manufacture at check of the message on a crime is carried out in absence of the parties that does not guarantee protection of their rights and legitimate interests. Thereupon, we share a position about necessity of satisfaction declared to one of the parties after excitation of criminal case of the petition for necessity of appointment and expert testimony in court manufacture. It, in our opinion, will allow, not breaking the rights and legitimate interests of the parties to fulfil all requirements of the criminal procedure legislation, providing acquaintance with the decision (definition) about expert testimony in court appointment, presence possibility by its manufacture, acquaintance with the expert's statement.

At various checks of the message on a preparing or perfect crime attraction of the expert for realisation spravochnokonsultatsionnoj activity is possible. Thus it can assist the investigator or the inspector in preparation of investigatory actions and materials for expert testimony in court appointment. Article 6 of the Federal act from May, 31st, 2002 № 63-FZ «About lawyer activity and legal profession in the Russian Federation» assigns to the lawyer the right to a contractual basis to involve experts for reception of consultations on the questions connected with rendering by it qualified legal aid.

After end of expert testimony in court and expert's statement representation the expert can give to the appointed her face evidences on the interrogation spent for an explanation or specification of the conclusion according to item 205 and item 282 UPK the Russian Federation.

Studying the current legislation, it is necessary to notice, that to equality and competitiveness of the parties, fixed in Constitution item 123

The Russian Federations, are devoted corresponding articles of agrarian and industrial complex of the Russian Federation (item 8 and 9), GPK the Russian Federation (item 12). To a competitiveness principle in criminal trial the Russian Federation, and to equality of the rights of the parties - item 244 UPK the Russian Federation is devoted item 15 UPK. Principles of competitiveness and equality of the parties in the criminal trial are connected together in the Decision of the Constitutional Court of the Russian Federation from February, 14th, 2000 № 2-П [54].

The parties and their representatives regularly direct to the state judicial-expert establishments inquiries about carrying out of various examinations and expert researches, repeated examinations, reviewing of expert opinions. Studying of the archival materials which have arrived in FBU RFTSSE at Ministry of Justice of Russia during the period with 2011 for 2016, testifies to the regular reference of the parties and their representatives, for information reception about: questions which dare expert testimonies in court of various kinds; materials which it is necessary to put at disposal of experts; possibilities of modern scientifically-methodical maintenance of expert testimonies in court.

On overwhelming majority of the inquiries, connected with carrying out of expert researches of the objects which are material evidences, and also with retsenzirovany expert's statements from SEU Ministry of Justice of Russia refusals, motivirovannye absence at the given establishments of powers for realisation of evaluation of evidence arrive.

F.G.Aminev carries reviewing of expert's statements to not remedial form of application of special knowledge. In its opinion, the expert's statement review plays a positive role in legal proceedings as assumes the objective analysis of the conclusion presented on reviewing in which the reviewer, mentally models a course of expert research, sometimes by means of natural experiment and natural modelling of a course of expert research, establishes positive and negative sides of expert research, compares it with standard methodical recommendations about carrying out of the expert testimony in court given a kind, estimates possibility of influence of the admitted errors and lacks on the formulated conclusions [55]. A.A.Tarasov expresses negative opinion on the review of the expert's statement "at sight". In its opinion, the similar review is the defective document, and in in view of absence of corresponding researches calls into question validity of conclusions of the expert [56].

In our opinion, reviewing of expert's statements probably. As not remedial form of use of special knowledge it is necessary to limit the review of the expert's statement to revealing of expert errors and (or) deviations from the traditional methodical approaches applied at research of similar objects of expert testimony in court. It is thus considered inadmissible to carry out at expert's statement reviewing an estimation of its competence, personal qualities, to call in question its independence, specifying in possible corruption communication with someone from participants of process to state a legal estimation to the expert's statement, including the recommendation about a recognition of the reviewed expert's statement the incompetent evidence.

Example from practice. In FBU RFTSSE at Ministry of Justice of Russia in 2016 citizen M with the request has addressed to inspect competence of the expert and the expert's statement executed by it. In the answer from FBU RFTSSE at Ministry of Justice of Russia it has been specified, that the given federal budgetary establishment by a summer residence of reviews on them is not allocated by the right of an estimation of expert opinions. The Ministry of Justice of Russia develops Methodical recommendations about the organisation of reviewing of the conclusions of employees of judicial-expert establishments of Ministry of Justice of Russia according to which reviewing pursues the aim of improvement of quality and scientific validity of expert's statements. Thereupon reviewing of expert opinions under statements physical and legal bodies is not spent.

According to J.A.Gorjanova, the defender should not be engaged in collecting of courts of evidence, and is obliged to form the information and subsequently (if necessary) to transfer to its bodies of criminal prosecution and court [57]. The documents received from the defender, the inspector or court are not obliged to enter now upon the record.

We positively estimate a short story of the criminal procedure legislation, namely according a right to the defender to involve the expert according to item 58 UPK the Russian Federation. Similar position is available in item 4 of a part of third item 122 of Republic Kazakhstan UPK «Collecting of proofs».

To realise the right of defence given by the law the suspect (convicted) can by means of the lawyer practically at any stage of manufacture of expert testimony in court, since its appointment, continuing on a stage of its manufacture, and finishing on a stage of acquaintance with the expert's statement.

More often, the lawyer, carrying out the function guaranteed by the law, both protection, and charges (as the legal representative of the victim) does not possess data on modern possibilities of expert testimonies in court and is forced to involve the expert for research of the expert's statement from the point of view of correctness of use of scientific positions and a research technique, and also validity of the received conclusions. The lack of own special knowledge is overcome by attraction to participation in business of corresponding experts (ч.1 item 58, item 3 ч.1 item 53 UPK the Russian Federation) [58].

The exception is constituted by cases when the lawyer himself possesses special knowledge as earlier worked in judicial-expert establishment. The formulation of conclusions on the basis of special knowledge is an exclusive prerogative of the expert even if the inspector (for example, the former court expert), that in practice meets not so often, is competent enough, that them to make [59]. Not belittling a role of the court expert as the carrier of special knowledge, at carrying out of judicial-expert researches and a formulation of conclusions, we believe, that in modern legal proceedings the role of other experts should increase.

As the possession corresponding special knowledge allows the lawyer or other representative of the litigant to raise efficiency of the activity at appointment and manufacture of expert testimonies in court we suggest to involve actively for participation in criminal, civil, arbitral procedure of the persons having judicial-expert education and (or) experience of expert work, and (or) the past additional professional formations in the educational institution having the licence in a direction of preparation "expert testimony in court".

With a view of increase of efficiency of use of special knowledge by the parties and their representatives the Representative of the party - the expert in the field of judicial-expert activity »suggested to provide possibility of additional vocational training in the form of retraining under the additional professional program«. Among priority directions of the given additional vocational training it is necessary to allocate: «the representative of the party - the expert in the field of judicial-economic examination»; «the representative of the party - the expert in the field of judicial-ecological examination»; «the representative of the party - the expert in the field of judicial is computer-technical expert appraisal». The substantiation of a priority choice of the given directions sudebnoekspertnoj is presented activity in the second chapter of the dissertation.

Among circumstances on which it is necessary to turn at expert's statement studying, it is necessary to allocate:

• sufficiency of the signs revealed by the expert for a formulation scientifically-substantiated conclusions;

• correctness of an estimation the expert of the revealed signs;

• presence (absence) of contradictions between a research part of the conclusion and conclusions;

• logicality of a statement of actual facts of the business concerning a subject of examination;

• use of modern scientifically-methodical base by expert testimony in court manufacture.

Now in practice of the party and their representatives face a problem connected with practical impossibility of acquaintance with methodical materials which are used in expert practice. One part of judicial-expert techniques is published by the limited circulation and represents a rare book, another with a signature stamp «for office using» and can be given only by inquiries investigatory or courts of justice.

In the conditions of adversary procedure of data on judicial-expert techniques the parties and their representatives have the right to enquire not only the inspector or court, but also. Use of the given materials can play further a main role during proceeding.

By manufacture of concrete expert testimony in court, the party and their representatives can receive answers to many questions, concerning uses of special knowledge in numerous not state sudebnoekspertnyh establishments which actively advise lawyers on the questions connected with use of special knowledge. Lawyers quite often engender doubts at judges concerning the circumstances proved by the party of charge, by critical research of proofs available in business, including the expert's statement [60]. Similarly activity of the lawyer which being based on lacks of work of the inspector and specifying in them in session of the court, realises the received knowledge in favour of the client, the court expert in case of revealing methodical and dejatelnostnyh errors in the expert's statement, represents them in the form of the review of session of the court, and a copy to the court expert who has prepared the drawn conclusion, for an exception of repetition of the revealed lacks of the further is judicial - expert activity [61].

In the remedial way of elimination of the lacks revealed during an estimation of the expert's statement by the inspector or court, appointment and manufacture of repeated examination which is carried out by other expert (the commission of experts) is. However there are situations when to realise possibility of manufacture of repeated examination at a legal investigation in court in practice it will be impossible, as objects of research by manufacture of primary examination are destroyed or unsuitable for carrying out of repeated research.

Tactics of the defender concerning use of institute of expert testimony in court can play an important role at realisation of protection convicted, both on preliminary investigation, and by consideration of various categories of affairs in court.

In practice interests of the convicted can be represented and not by its defenders. This circumstance leads to necessity to consider the questions, mentioning is directly right the most convicted on independent use of expert testimony in court, as well as other remedial evidences. Owing to item 4 ch. 4 items 47 UPK the Russian Federation convicted have the right «to represent proofs», at a stage of preliminary investigation including. However, from explanations of the Constitutional Court of the Russian Federation follows, that the convicted does not have choice possibility «... At own discretion any ways and protection procedures». Moreover, the position excluding the statement convicted about appointment of expert testimony in court from among legislative grounds for its carrying out [62] is expressed.

The constitutional Court of the Russian Federation also specifies in necessity of maintenance of the rights of participants of process at appointment and expert testimony in court manufacture on criminal case, and does not see, any contradictions between positions criminal procedure

Legislations and the Constitution of the Russian Federation.

At the same time the Constitutional Court of the Russian Federation results the remedial mechanism, using which, convicted can be protected from the brought accusations at any stage of process, at the decision of a question on appointment of expert testimony in court including.

The constitutional Court formulates the relation: « . . Convicted and its defender within the limits of the right to representation of proofs can declare petitions for appointment and expert testimony in court carrying out, and at its appointment - to get acquainted with the decision about its appointment, to declare tap to the expert or to petition for expert testimony in court manufacture in other expert establishment, to petition for attraction as experts of the persons specified by them or about expert testimony in court manufacture in concrete expert establishment, to petition for entering into the decision about appointment of expert testimony in court of additional questions to the expert, to be present with the permission of the inspector by expert testimony in court manufacture, to give explanations to the expert, to get acquainted with the expert's statement or the message on impossibility to draw the conclusion, and also with the record of interrogation of the expert, to appeal against actions (inactivity) and decisions of the inspector, the public prosecutor and court, including concerning expert testimony in court carrying out (article 47, 53, 119-127, 198 and 283 UPK the Russian Federation) »[63]. Besides,« at insufficient clearness or completeness of the expert's statement, and also at occurrence of new questions in the relation before the investigated circumstances of criminal case convicted and its defender has the right to petition for appointment of the additional expert testimony in court, which manufacture is entrusted to same or other expert, and in cases of occurrence of doubts in validity of the expert's statement or presence of contradictions in conclusions of the expert or experts - about appointment of the repeated examination, which manufacture is entrusted to other expert (articles 47, 53, 119-122, 207 and 283 UPK to the Russian Federation) »[64].

In practice, as a rule, the specified mechanism frequently does not function. One of the impossibility reasons to take advantage of all completeness of the rights given by the criminal procedure legislation, is, for example, loss by objects of research (first of all a biological origin) by the legal investigation moment in court of the initial signs that does their unsuitable for manufacture of expert testimonies in court.

During dissertational research the analysis of written references of lawyers in FBU RFTSSE is carried out at Ministry of Justice of Russia with 2011 for 2016.

The carried out analysis allows to draw a conclusion that concerning appointment and manufacture of expert testimony in court and remedial independence of participants of the process, proclaimed the law and the idea of equality of the parties adjusted with it, in particular, concerning gathering of proofs, has rather conditional character. This conclusion is caused by that real possibilities of participants of process (for example, the protection parties) concerning judicial-expert activity are caused by their possibilities at a stage of appointment of expert testimony in court.

Lawyers often enough consider, that the head of judicial-expert establishments (divisions), refusing in dialogue of court experts with representatives of the party of protection on the questions, connected with executed by them

Expert testimonies in court, breaks their legitimate rights connected with realisation of a principle of competitiveness.

It is necessary to note complexities with the statement of petitions, realisation of the right to the appeal in court of actions (inactivity) of the officials who are carrying out manufacture on business (refusal of the inspector to satisfy the petition at appointment and manufacture of expert testimony in court including). According to item 46 of the Constitution of the Russian Federation the above-stated appeal is provided. However level of their satisfaction is very low - is on the average satisfied only about 10 % of complaints [65].

R.S.Belkin considered, that in case of granting to protection is right to appoint independently examinations, «... It is necessary to provide and possibility of realisation of this right as through obligatory manufacture of such examinations in judicial-expert establishments of all departments, and out of them by independent (or with participation of the inspector) invitations of the experts who are not employees of expert establishments» [66].

Discussion of the given point of view on possibility of investment of the party of protection to appoint expert testimonies in court is led by the right in the scientific literature [67]. As one of the bases for such decision the thesis that the rights and interests of citizens involved in process always are mentioned by expert investigation [68] is put forward.

At legislative level possibility of appointment of expert testimony in court or to the victim is given the party of protection in Republic Kazakhstan. According to item 2 of a part of third item 122 UPK RK «Collecting of proofs» the defender or the representative of the victim have the right to initiate expert testimony in court manufacture on a contractual basis.

We consider, that in the Russian Federation expansion of powers of the defender and the victim in collecting of proofs by according a right under the initiative to appoint expert testimonies in court in our country prematurely. The given conclusion is caused by that unlike Republic Kazakhstan, legal regulation of activity of not state court experts in the Russian Federation practically is absent, including to them licensing procedure, unlike Republic Kazakhstan and Byelorussia is not applied.

Therefore at investment of the defender and the representative sustained to initiate manufacture of expert testimonies in court in case of their reference to the persons which competence raises the doubts, it is possible to come to unpredictable consequences.

Operating UPK the Russian Federation expands the rights of the victim. To it is accorded to have a right the legal representative (lawyer) (item 8 ch. 2 items 42, ch. 1 items 45 UPK the Russian Federation). Besides, even before acquaintance of the victim with all materials of criminal case upon termination of preliminary investigation to it (as well as to the suspect convicted, the victim, the witness) at appointment and examination carrying out is accorded to get acquainted a right not only with the expert's statement, but also with the message on impossibility to draw the conclusion, and also with the record of interrogation of the expert (item 6 ch. 1, ch. 2 items 198 UPK the Russian Federation). The rights established for the suspect, convicted and its defender are extended To the victim within the limits of item 198 UPK the Russian Federation. The given fact is considered by us as constructive steps to realisation of a principle of competitiveness and equality of the parties. For realisation of this principle the protection party has the right simultaneously with the statement of the petition for expert testimony in court appointment to offer court a nominee of the expert. Thus and from among the persons possessing special knowledge, but the state judicial-expert organisations not being workers. This rule operates both at carrying out of primary examination, and at carrying out of repeated (recuperative) and additional examinations. The party of charge and the protection party should have the equal rights to get acquainted with corresponding documents on the expert testimony in court appointment, taken out corresponding investigatory or courts of justice. At the expert testimony in court appointment which manufacture is adjusted with criminal prosecution bodies to petition for manufacture in concrete judicial-expert establishment, including in not state judicial-expert establishment on a contractual basis [69].

The present stage of development of judicial-expert activity is characterised by application of modern advanced techniques of research. For example, the technique ³08m-01 is intended for revealing of traces papilljarnyh patterns by steams tsianakrilata in laboratory isparitelnoj to chamber "CyanFumingChamber" (the manufacturer «Voigtlander», Germany) with a circulating cleaner of air. In FBU RFTSSE at Ministry of Justice of Russia revealing of invisible (latent) traces of hands is carried out by means of steams tsianakrilata in laboratory isparitelnoj to chamber "CyanFumingChamber" (the manufacturer «Voigtlander», Germany) with a circulating cleaner of air (the closed system of clearing) at atmospheric pressure.

Now experts use the modern equipment for achievement of the best result of examination or research. Papilljarnye fingerprints of hands and other traces happen maloinformativny, the special equipment is in that case applied: digital microscope KEYENCE VHX - 5000 200-250 krat increases and to establish an accessory of the given traces to identification of subjects (tool) of breaking it is not represented possible as they are not suitable. But experts have established, that under the form and the sizes of traces they are suitable for an establishment of a patrimonial accessory of the given subjects (tool).

E.V.Selina considers problems of realisation of the right of the expert on the expert initiative. Thus warns against a situation, at which

It is possible to receive a variant of the expert's statement with answers only on the "" questions formulated by the expert. It can occur, if the expert has taken advantage of the right to the expert initiative, denying all questions put before it in the decision (definition) about appointment of examination [70 [71]. T.A.Sedova considers, that a reformulation of questions

The inspector (vessels), leading to narrowing of volume of the task, it is impossible to recognise

71

The correct.

To provide an order providing the maximum restriction of personal contact of experts with participants of the criminal trial, with raznonapravlennymi remedial interests, the head of judicial-expert establishment or the organisation should. Thereupon, there is a problem some other level which is connected with carrying out of extrajudicial examination in negosudarstvennom (organisations).

The court expert is independent of persons or the bodies appointing expert testimonies in court, and also from other participants of process. Thus actual realisation of a principle of independence is considered as concerning the experts working in the state judicial-expert establishments, and concerning workers of not state judicial-expert organisations. Both in that and in other cases the problem of maintenance of independence causes concern in a number of authors [72]. It is represented, that more the acute problem of maintenance of independence faces to workers of not state judicial-expert organisations who quite often receive the task directly from representatives of the party of protection, quite often not state court expert himself supervises over selection of comparative materials for carrying out of research and personally informs results of research to the party in interest. All it raises the doubts in their disinterest of the expert in issue of a suit [73].

E.R.Rossinsky allocates concept «competitiveness of experts» as unique possibility of check of scientific validity and reliability of the expert's statement which should be realised investment of the party of protection with the right of appointment of expert testimonies in court [74]. J.I.Gorjanov suggests to consider competitiveness of experts a special case of competitiveness of experts in the criminal trial, specifying on possibility of polemic of the expert and the expert [75].

According to P.V.Bondarenko, the party of process having doubts in competence or disinterest of the state court expert, and also in cases when its petition for appointment of repeated expert testimony in court deviates, addresses in not state sudebnoekspertnye the organisations more often. For example, the court has all powers for gathering of materials for manufacture judicial pocherkovedcheskoj examinations. However, when examination is appointed at the initiative of the party, there are cases of granting of copies of documents instead of their originals, samples of handwriting ogranichenny on volume and often differ unsatisfactory quality [76].

The requirements shown to competence of experts in not state judicial-expert organisations, essentially differ from similar requirements which are shown to experts consisting on public service. Actual a problem of acknowledgement of competence of workers of not state judicial-expert establishments or not state court experts as the authorised bodies and the corresponding mechanism of acknowledgement by the current legislation it is not provided.

Quality of expert manufacture in state SEU is supervised by practice of reviewing of expert opinions, their periodic certification on the right of independent manufacture of expert testimony in court. For not state judicial-expert establishments check of competence by their accreditation on conformity to requirements of international standard ISO/MEK 17025 and the national standard of GOST R 52960-2008 [77]. Competence of not state court experts can be estimated now within the limits of voluntary certification in the Systems organised FBU RFTSSE at Ministry of Justice of Russia or noncommercial partnership «Chamber of court experts of a name of J.G.Koruhova».

Despite the equality of the parties provided by the legislation in the proceeding stage, including equal possibilities of the parties to declare the petition to represent proofs and to participate in their research, the analysis pravoprimenitelnoj experts testifies to certain advantage of the party of charge in criminal trial frameworks to carry out activity on collecting of proofs on preliminary investigation in comparison with possibilities of the party of protection. According to S.D.Shestakovoj, sostjazatelnuju the process form is excluded by an inequality in remedially-legal statuses of bodies of criminal prosecution and the party of protection [78].

According to E.V.Selinoj, the basic obstacle for full realisation of a principle of competitiveness and equality of the parties in criminal trial is the appointment procedure and expert testimony in court manufactures. The specified author considers, that at a stage of preliminary investigation the legislator did not manage to provide in relation to expert testimony in court the equal rights to the citizens acting in the criminal trial as convicted and victims [79].

According to B.M.Bishmanova, prematurely to say that special knowledge in the criminal trial is used on the basis of operating constitutional principles of criminal trial, including a principle of competitiveness of the parties including [80].

Expert testimonies in court are spent on materials of the initiated criminal cases or on materials dosledstvennoj the check spent as item 144 UPK the Russian Federation. All other kinds of expert researches in the state judicial-expert establishment can be spent exclusively on a contractual basis by the conclusion of the civil-law contract. That is there should be accurate legal grounds for carrying out of examination and expert research. As the basis for carrying out judicial within the limits of materials of criminal case or check materials the decision about examination appointment serves. In case of carrying out of expert research within the limits of the civil-law contract the basis is the contract on carrying out of expert research.

The Criminal procedure legislation (item 207 UPK the Russian Federation) gives to participants from protection the right to declare the petition for appointment of additional or repeated examination. However, on the basis of our supervision and as shows the spent interviewing of lawyers to make it in practice extremely difficult. So, whether for appointment of additional examination it is necessary to find out enough clearly or full expert's statement, for appointment of repeated examination - it is necessary is given reason to prove an inconsistency before the carried out examinations. Both in that and in other case without the aid of the corresponding expert to make it it is difficult enough. In the state judicial-expert establishments of system of Ministry of Justice of Russia now the lawyer can receive oral or written consultation of the state court expert.

Correctness and validity of conclusions of judicial-expert research can be estimated only within the limits of manufacture of the repeated examination spent according to item 207 UPK the Russian Federation for which appointment participants of process have the right to petition according to the current legislation.

It is necessary to notice, that absence at victims of the right without the reference to organs of inquiry to use expert testimony in court possibilities at a stage of preliminary investigation mentions their legitimate interests. Are available in view of a situation when during preliminary investigation of the statement of victims with the petition, for example, about appointment of additional and repeated examinations, remain unsatisfied. As subsequently it is found out - these refusals become the reason investigatory and miscarriages of justice. S.A.Korsakov as a way out from the developed situation, offers distribution of positions of a principle of competitiveness of the parties - through competitiveness of examination from charge and from protection [81].

The problems connected with investment of the party of protection by the right to constitute «the protective conclusion» to represent it to court, publicly to disclose on the same level and in an order provided for the bill of particulars, are actively discussed in the scientific literature [82]. We divide the point of view about inexpediency to give on preliminary investigation to the party of protection the right to constitute «the protective conclusion» as it can create obstacles for activity realisation on an establishment of actual facts of business [83].

Pravoprimenitelnaja practice testifies, that judicial-expert activity now it is impossible to carry out to the full forces of the judicial-expert establishments created by federal public authorities. Recently not state judicial-expert organisations actively function.

As a rule, not state judicial-expert organisations involve for carrying out of preliminary research of disputable objects. Thus research is spent with use of judicial-expert techniques, that, according to E.R.Rossinsky, is essential as allows to receive the focusing information [84]. In the subsequent, the party - the initiator of preliminary research can petition for attraction as the expert that person who carried out earlier preliminary research. Similar it is possible owing to that the legislator does not provide the special provision containing an interdiction to the expert to make examination as the person which carried out earlier research. In the event that on the examination permission the questions investigated earlier are put (under condition of satisfaction the party petition), is given by the expert a subscription with its prevention of responsibility under the item 307 UK the Russian Federation also is made out the conclusion, without carrying out of additional researches [85].

Thus we wish to note, here again we agree with E.A.Borodinoj's [86] opinion, that as criterion at a choice participants of process of the expert and judicial-expert establishment (organisation) their accessory to this or that structure (state or not state), and the developed good character of competence of this establishment (organisation), confirmed with spent qualitative and objective researches with use of the modern scientifically-proved methods should serve not. Such reputation sudebnoekspertnye establishments and the organisations, both in state, and in not state spheres should form in modern legal proceedings in the conditions of a reasonable competition.

Let's consider an example from practice. In one of branches PAO "Savings Banks" there was a plunder of money resources from sejfovoj cells for the sum about 10 million roubles. Sejfovaja the cell had difficult system of the lock and could open two different types suvaldnyh keys. During carrying out of primary examination sejfovogo the lock it has been established, that on a surface of elements of the lock chaotic traces which could be formed in the course of lock service, and they do not concern traces from extraneous subjects (master keys, tools).

The court had been appointed additional examination which has been charged experts is judicial-trasologicheskoj laboratories FBU RFTSSE at Ministry of Justice of Russia.

At additional research it has been established, that on lock elements sejfovoj cells are available mikro traces from extraneous subjects of type of master keys, their characteristic position and an influence direction specifies in moving of elements of the lock with suvaldnym the mechanism on unlocking sejfovoj cells «STUV», since. Traces are a little informative, the equipment digital microscope KEYENCEVHX-5000 200-250 krat increases has been applied, and to establish an accessory of the given traces to identification of subjects (tool) of breaking it is not obviously possible, as they for identification are not suitable. But experts have established, that under the form and the sizes of traces they are suitable for an establishment of a patrimonial accessory of the given subjects (tool).

Whether to answer the lock sejfovoj cells «STUV» has categorically been unlocked, it is not obviously possible, because of few informative microtraces and absence of subjects (tool) of influence.

The establishment of a relationship of cause and effect on time of formation of traces during this period or is complicated before by following circumstances. Limitation periods of formation of traces on a metal surface in sejfovom storehouse, and also complexity zamkovogo the mechanism (2 keys) are not defined. The lock of import manufacture and on it is absent special engineering specifications. There is no equipment for check of elements of blocking.

The lock given on research with suvaldnym the mechanism is serviceable, complete, and is suitable for lock-out and unlocking by the given keys №1, №2, without electromechanical blocking (electromechanical blocking to check up it is not given possible, for the reason specified in a research part of examination). On elements suvaldnogo the lock mechanism there are dynamic traces (scratches of a various orientation), formed from influence of the pointed subjects in the form of adaptations of the "master keys" directed on unlocking suvaldnogo of the mechanism of the lock.

On face surfaces of a key №2 (bank) are available dynamic traces in the form of the scratches focused along a cross-section axis of a core of a key, formed from interaction with suvaldnym the lock mechanism.

The key №2 was used for unlocking and lock-out of the lock given on research sejfovoj cells, to establish exact quantity of times it is not given possible, for the reason specified in a research part of the judgement.

Images of objects have been received by means of digital chamber "NikonD50" and raspechatany on the printer «HPColorLaserJet 3600».

Measurements were spent by a ruler (the division price - 1 mm) and a calliper (the division price - 0,1 mm).

The expert spends the beginning of research from external survey.

On research are given: a metal door (sejfovoj cells), the lock (disconnected from a door), and two keys.

Whether for the decision of an additional question «dynamic traces on elements suvaldnogo the lock and key №2 mechanism, for identification of their subject formed Are suitable?» Detailed microresearch of dynamic and static microtraces on surfaces suvaldnogo the lock mechanism sejfovoj cells, and a key №2 (bank) with application of a microscope the Watering can (increase from 10 to 60 krat Was spent.), a microscope «KEYENCEVHX 5000, increase from 20 to 200 krat».

During detailed microscopic research of surfaces suvaldnogo the lock mechanism it is established, that on a surface suvald and a crossbar there are dynamic both static microtraces and partial stratification of substances of black and dark blue colour:

- On suvaldah dynamic microtraces in the form of lines (platens and grooves), displaying features of a microrelief from the subjects which have left them (for example, master keys), the linear and zigzag form, the limited length, located in an average part suvaldy. The given microtraces maloinformativny (the width and a trace microrelief were indistinctly displayed), for identification sledoobrazujushchih subjects are not suitable. There is a partial stratification of substance of black colour and dark blue colour on a surface of a microrelief of microtraces (otm. A yellow, dark blue arrow), in an average part suvaldy;

- On suvalde dynamic microtraces in the form of lines (platens and grooves, the greatest in the size about 1,19х0,06мм), displaying features of a microrelief from the subjects which have left them (for example master keys) the linear form, the limited length, crossed chaotically, and the various orientation, the located in average and bottom part suvaldy. The dynamic microtrace (the greatest in the size about 1,19х0,06 mm), could be suitable for definition of a patrimonial accessory of a subject (on width, the form of a microrelief of a trace), in case of granting of subjects on research. There is a partial stratification of substance of black colour and dark blue colour on a surface of a microrelief of microtraces, in an average and bottom part suvaldy;

- On blocking skobe in the form of lines (platens and grooves), displaying features of a microrelief from the subjects which have left them (for example, master keys) the linear and zigzag form, the limited length, crossed chaotically, and the various orientation, the located in top, average part skoby. Dynamic microtraces (the greatest size nearby 0,96х0,03мм) on a surface skoby could be suitable for definition of a patrimonial accessory of subjects (on width, the form of a microrelief of a trace), in case of granting of subjects on research. There is a partial stratification of substance of black colour and dark blue colour on a surface of a microrelief of microtraces, in an average and bottom part skoby.

The signs established above in the form of static (on a crossbar) and dynamic microtraces (on suvaldah, a crossbar, skobe blokir.) testify that on surfaces suvaldnogo the mechanism and a lock crossbar there are extraneous static and dynamic microtraces of the various form and the orientations formed from influence of extraneous subjects, having hardness of a material above, than hardness of a material, and having the pointed surfaces of the various form (the size about 0,8-1,2 mm, for example, from master keys).

Set of static and dynamic microtraces of influence of the extraneous subjects which are available on the presented level lock, and also on blocking skobe (dynamic microtraces), and presence of the expressed dynamic traces on a crossbar specifying in lock unlocking (the direction of influence of the enclosed force "to the right" see a photo 39, 48) and lock lock-out (a direction of influence of the enclosed force "to the left"), allows to draw the conclusion that the level lock mechanism could is unlocked and locked from an influencing extraneous subject.

Available traces of stratification of dark blue and black colour on a relief surface in places of influence of an extraneous subject, are signs of oxidation of a metal surface of elements suvaldnogo the lock mechanism, the mechanism of their formation is not included into the competence trasologa.

On elements suvaldnogo the lock mechanism there are static and dynamic microtraces. On suvaldah dynamic microtraces are presented in the form of lines (platens and grooves), displaying features of a microrelief from the subjects which have left them (for example, master keys), linear and zigzagobraznoj the forms, the limited length, located in an average part suvaldy. The given microtraces maloinformativny (the width and a trace microrelief were indistinctly displayed), for identification sledoobrazujushchih subjects are not suitable. Set of microtraces (the sizes, their directions) on surfaces suvald and a crossbar, are formed from power influence of the extraneous subject having hardness of a material above, than a material of elements of the lock, and the pointed surfaces of the various form (the size about 0,8-1,2 mm, for example, from master keys).

During research of surfaces of a key №2 (bank) is established:

- On two small beards of a key №2 there are 6 ledges on one small beard, and 7 ledges on the second small beard;

- On face surfaces of ledges and key small beards there are dynamic microtraces in the form of the linear and zigzag form, the limited length, crossed chaotically, and a various orientation. The given microtraces maloinformativny (the width and a trace microrelief were indistinctly displayed), for identification sledoobrazujushchih subjects are not suitable. There is a partial stratification of substance of dark blue colour on a surface of a microrelief of microtraces (otm. A beige arrow);

- On face surfaces of ledges key small beards there are dynamic microtraces in the form of the linear form, the various length, located in parallel each other and perpendicularly longitudinal axis of a key. The given microtraces maloinformativny (the width and a trace microrelief were indistinctly displayed), for identification sledoobrazujushchego a subject are not suitable. There is a partial stratification of substance of dark blue colour on a surface of a microrelief of microtraces.

The analysis of dynamic microtraces in a kind in the form of the linear and zigzag form, the limited length, crossed chaotically, and a various orientation on face surfaces of ledges of "1-13" small beards of a key №2 (bank), their arrangement and quantity allows to draw a conclusion that the key №2, was exposed to influence of the stranger of subjects (for example, tools for processing of a surface of ledges of a key), and is possible at twirl manufacturing № 2 (bank).

Dynamic microtraces of the linear form on surfaces of the ledges located in parallel each other and perpendicularly longitudinal axis of a key, were formed at unlocking and lock lock-out, as a result of contact with suvaldami, a lock crossbar.

On a surface of ledges of small beards of a key №2 (bank) are available dynamic microtraces of the linear and zigzag form, the various length, chaotically crossed, formed from the subjects having hardness above, than a key material. Dynamic microtraces on a surface of a key for identification are not suitable.

To establish time of formation of the above-stated microtraces for lock and key №2 elements, trasologicheskimi methods do not give on possible because of absence trasologicheskih methodical workings out on an establishment of a limitation period of microtraces on metal objects.

Substance stratification (type of plasticine or slepochnyh weights) on a key surface №2не is revealed to establish presence of possibility of removal of a mould from a key № 2 for the purpose of manufacturing of its duplicate it is not given possible.

For the decision of the third question (in a part «to Define privacy level (complexity) the lock) decisions of the inspector detailed research of the lock and a key №2 (bank) was carried out.

The given lock of foreign manufacture, documents and lock maintenance instructions are not given.

Principle of work and the device of depositary lock "STUV".

The lock opens through one key aperture, at first a bank key (which it is not given), and then a key of the client (is given the key №1 client and a key №2 bank). Unlocking by two keys in one keyhole two packages suvald, located provide one over another. The bank package consists of five suvald, and client of seven suvald (one suvalda with a spring).

At turn the bank key will unblock client and at turn co-operates with suvaldami both grooves how springs at suvald are not present, at turn on 180 hailstones. The key is taken from the lock.

Then the key of the client is inserted and at turn it is not taken out because of a ledge on a cover suvald a bank key.

The device of the lock does not allow to open a client key before bank since it pushes the basic bolt, and in it to it promotes blocking skoba which moves at turn of a bank key. The lock is closed only by a key of the client how at shift of a frame and the bank component by means of spring skoby moves.

The lock has the coil with wires which is connected by a bolt, it gives a signal on the panel (protection of bank cells) in what position there is a crossbar (bolt).

Definition of a class of complexity (privacy) of the lock with suvaldnym the mechanism on 2 keys in the competence of the expert trasologa does not enter, the given lock for a depositary cell should is certificated and be tested test according to STATE THAT R 51053-2012 «Locks sejfovye. Requirements and test methods on stability to not authorised opening», in the accredited organisations.

On the basis of the above-stated to establish a class of complexity (privacy) of the given lock with suvaldnym the mechanism on 2 keys it is not given possible for the reason specified in a research part of examination. On a surface of ledges of small beards of a key №2 (bank) are available dynamic microtraces of the linear and zigzag form, the various length, chaotically crossed, formed from the subjects having hardness above, than a key material. Dynamic microtraces on a surface of a key for identification are not suitable.

The expert had been formulated following conclusions.

On questions «what limitation period of occurrence of dynamic traces on elements suvaldnogo the mechanism of the lock and on a key №2» is informed on impossibility to draw the conclusion.

On elements suvaldnogo the lock mechanism there are static and dynamic microtraces;

- On suvaldah dynamic microtraces maloinformativny (the width and a trace microrelief were indistinctly displayed), for identification sledoobrazujushchego a subject are not suitable;

- On suvalde, a crossbar, static and dynamic microtraces could be suitable for definition of a patrimonial accessory of subjects (on width, the form of a microrelief of a trace) in case of granting of subjects on research;

- On surfaces suvald and a crossbar, the material of elements of the lock, and the pointed surfaces of the various form (by the size about 0,8-1,2 mm, for example, from master keys) are formed from the power influence of extraneous subjects having hardness of a material above, than.

On a surface of ledges of small beards of a key №2 (bank) are available the dynamic microtraces formed from subjects, having hardness above, than a key material. Dynamic microtraces on a surface of a key for identification are not suitable.

Substance stratification (type of plasticine or slepochnyh weights) on a surface of a key №2 is not revealed to establish presence of possibility of removal of a mould from a key № 2 for the purpose of manufacturing of its duplicate it is not given possible.

To establish a class of complexity (privacy) of the given lock with suvaldnym the mechanism on 2 keys it is not given possible for the reason specified in a research part of examination.

Use of results of the judicial-expert researches spent on the basis of petitions by litigants and their representatives by not state court experts in the course of proving on criminal cases, can represent the tool of additional quality assurance of expert manufacture and will promote realisation of a principle of competitiveness and equality of the parties.

At carrying out of expert testimonies in court on criminal cases they often should petition for a call of experts in court for evidence on the substance of the carried out examinations, and also for the answer to a number of other questions directly related to a subject of examination. Interrogation of the expert on preliminary investigation and in court is spent for an explanation, addition, answers to other questions connected with the conclusion prepared earlier. When the expert cannot at once is detailed answer the put questions, he can ask additional time for preparation of answers [87].

In the USA during legal proceedings on criminal cases the protection party at negative result of examination for its client in some cases tries to establish any negative data about the person of the court expert, its qualification, the office and other activity, the methodical materials applied by it, the above-stated data are used to show an inconsistency of the executed expert's statement or to call into question its reliability [88].

According to item 177 UPK the Russian Federation the inspector inspects objects of examination with participation understood and executes the process-verbal, being guided by item 180 UPK the Russian Federation. The consequence often enough insists on it for an exception of an assumption of a probable error of the expert during a legal investigation, a carrying out possibility, at necessity, additional or repeated examination after change of a condition of object of research, for example, by manufacture of autotechnical expert appraisal as a result of dismantling of knots and HARDWARE units at survey, and also withdrawals of separate details and knots of the HARDWARE for carrying out of other kinds of examinations (for example, metallograficheskoj examinations for definition of the reason and the mechanism of destruction of separate details, etc.).

Carrying out of survey of objects of research also is carried out by expert survey of object in a place of its finding or storage, as an expert testimony in court part. If necessary the expert can declare the petition for granting to it necessary for a summer residence of the conclusion of additional materials. The inspector or court satisfies the petition of the expert and represents it object of research, or in a place of its finding or storage. In this case the record of search is not constituted. The basis for carrying out of any expert survey is the expert testimony in court commission to the concrete expert and realisation of a corresponding stage of expert research by it after the written coordination with the person (body) which has appointed examination.

In overwhelming majority of cases the samples received for carrying out of comparative research, are not material evidences. But can be recognised those when they are selected, for example, from the location of a corpse or a place of fulfilment of an ecological offence (i.e. From a place of investigated event), also have the direct relation to an offence [89].

According to ch. 4 items 202 UPK the Russian Federation if reception of samples for carrying out of comparative research is an expert testimony in court stage then this legal proceeding should be made the expert and in appropriate way are reflected by it in the conclusion.

Expert survey is one of expert testimony in court stages that allows the suspect convicted, to its defender with the permission of the inspector to be present at its carrying out (item 198 UPK the Russian Federation). Participation of the party of protection at carrying out of expert survey promotes obektivizatsii the given production phase of examination. It is caused by that during expert survey from objects which are given in its order as item 199 UPK the Russian Federation, samples who during the further expert research in some cases promote an establishment of the actual facts important for business [90] can be selected.

By expert testimony in court manufacture the inspector who can receive explanations of the expert concerning actions spent by it (item 197 UPK the Russian Federation) has the right to be present.

Point 5 of the first part of article 198 UPK the Russian Federation fixes the right of the suspect convicted, its defender to be present with the permission of the inspector by manufacture of expert testimony in court and to give explanations to the expert.

Article 24 FZ GSED «by expert testimony in court manufacture in the state judicial-expert establishment there can be those participants of process to whom such right is given by the remedial legislation of the Russian Federation. The participants of process who are present by manufacture of expert testimony in court, have not the right to interfere with a course of researches, but can give explanations and set the questions to the expert concerning a subject of expert testimony in court. At drawing up by the expert of the conclusion, and also at a stage of meeting of experts and a formulation of conclusions if expert testimony in court is made by the commission of experts, presence of participants of process is not supposed» [91].

According to the listed positions representatives of the party of protection have the right to explain something to the expert, but have not the right to receive any explanations from it. And if the summer residence of explanations can be considered as a way of realisation of the right of defence ineligibility to receive explanations of the expert concerning actions made by it we we can consider as unjustified refusal in realisation of this right. As the sense of presence at expert investigation just also consists in possibility to representatives of the party of protection to receive as much as possible full representation about a being of expert researches and to make sure of their objectivity.

The parties and their representatives regularly direct to the state judicial-expert establishments, in FBU RFTSSE at Ministry of Justice of Russia including, inquiries about carrying out of various examinations and expert researches, repeated examinations, reviewing of expert opinions.

Studying of archival materials, during the period with 2009 for 2016 to FBU RFTSSE at Ministry of Justice of Russia written references of the parties and their representatives, first of all lawyers, with a view of information reception regularly arrived about:

1. Possibilities of manufacture of expert testimonies in court of various kinds;

1. The questions solved during manufacture of expert testimonies in court;

2. The name, quantity of the materials, represented to the order of experts;

3. The requirements shown to quality of represented materials;

4. Methodical maintenance and the equipment which is used by manufacture of examinations of a concrete sort or a kind.

On overwhelming majority of the inquiries, connected with carrying out of expert researches of the objects which are material evidences, and also with retsenzirovany expert's statements from SEU Ministry of Justice of Russia refusals, motivirovannye absence at the given establishments of powers for realisation of evaluation of evidence arrive.

The lawyer, as a rule, does not possess a profound knowledge concerning modern possibilities of expert testimonies in court and is forced to involve the expert for an estimation of the expert's statement from the point of view of correctness of use of scientific positions and a research technique, and also validity of the received conclusions. The exception is constituted by cases when the lawyer himself possesses special knowledge as earlier worked in judicial-expert establishment.

Among circumstances on which it is necessary to turn at expert's statement studying, it is necessary to allocate:

1. Sufficiency of the signs revealed by the expert for a formulation scientifically-substantiated conclusions;

2. Correctness of an estimation the expert of the revealed signs;

3. Presence (absence) of contradictions between a research part of the conclusion and conclusions;

4. Logicality of a statement of actual facts of the business concerning a subject of examination;

5. Use of modern scientifically-methodical base by expert testimony in court manufacture.

Now in practice of the party and their representatives face a problem connected with practical impossibility of acquaintance with methodical materials which are used in expert practice. One part of judicial-expert techniques is published by the limited circulation and represents a rare book, another has a signature stamp «for office using» and can be given only by inquiries investigatory or courts of justice.

In the conditions of adversary procedure of data on judicial-expert techniques the parties and their representatives have the right to enquire not only the inspector or court, but also. Use of the given materials can play further a main role during proceeding.

By manufacture of concrete expert testimony in court, the party and their representatives can receive answers to many questions, concerning uses of special knowledge in numerous not state sudebnoekspertnyh establishments. Any attempt of influence somebody on the expert, on one of stages of appointment and expert testimony in court carrying out, irrespective of the purposes of such influence is not supposed. Especially for the purpose of reception of the conclusion with the conclusions giving advantage of one participant of process under the relation with others, or in interests of other persons.

The head of the judicial-expert organisation in which examination is spent, should provide an order providing impossibility of personal contact of experts with participants of the criminal trial, defending this or that remedial interest. Thereupon, there is a problem some other level which is connected with carrying out of extrajudicial expert research in not state judicial-expert organisation. As a rule, employees of these organisations receive the task for carrying out of corresponding research directly from participants of process from protection. Thus for carrying out of research the expert supervises over selection of comparative materials itself. And in summary inform results of research to directly party in interest. Thereupon causes vigilance and the mechanism of material compensation for carrying out of expert research

For the purpose of studying of a question on how representatives of the party of charge and the protection party define efficiency of use of special knowledge in the criminal trial us corresponding questioning among judges, public prosecutors, inspectors and lawyers is spent.

On a question: «How you estimate efficiency of attraction of experts in connection with necessity of appointment of expert testimony in court?» The majority of respondents (at possibility of several answers) has informed, that experts are involved with them for rendering assistance at statement of questions involved for rendering assistance at statement of questions of 64 % of respondents (43 % of judges, 85 % of inspectors, 60 % of lawyers); a choice of expert establishment of 39 % of respondents (34 % of judges, 54 % of inspectors, 32 % of lawyers); absence of necessity of attraction of experts at expert testimony in court appointment has declared 8 % of respondents (14 % of judges, 10 % of inspectors, 4 % of lawyers); 5 % of respondents (39 % of judges, 24 % of inspectors, 34 % of lawyers) were at a loss to answer.

Results of questioning testify that the majority of representatives of the parties of charge and protection positively estimate a role of the expert in the course of preparation of the decision or definition about expert testimony in court appointment.

Despite the equality of the parties provided by the legislation in the proceeding stage, including equal possibilities of the parties to declare the petition to represent proofs and to participate in their research, the analysis pravoprimenitelnoj experts testifies to certain advantage of the party of charge in criminal trial frameworks to carry out activity on collecting of proofs on preliminary investigation in comparison with possibilities of the party of protection.

During proceeding appointment of examinations in most cases occurs at the initiative of the parties (more than 90 %). Thus the court (judge) has not the right not only to deny without motivation instructions the questions, the taken out parties on the examination permission, but also nemotivirovanno not to satisfy the petition for its appointment. This fact proves to be true the studied archival judgements [92].

The expert can estimate correctness and validity of conclusions of expert research only within the limits of manufacture of the repeated examination spent according to item 207 UPK the Russian Federation for which appointment participants of process have the right to petition according to the current legislation.

Pravoprimenitelnaja practice testifies, that judicial-expert activity now it is impossible to carry out to the full forces of the judicial-expert establishments created by federal public authorities. Recently not state judicial-expert organisations actively function.

The legislation does not provide examination appointment as the parties participating in business. But any of them can petition before court not only for its appointment, but also about a nominee of the expert. For realisation of a principle of competitiveness the protection party has the right to declare the petition for attraction to expert investigation of the persons who are possessing special knowledge and not being workers of the state judicial-expert organisations. This rule extends and on cases of carrying out both repeated, and additional examination.

Use of results of the expert researches spent on the basis of petitions by litigants and their representatives by not state court experts in the course of proving in the criminal trial, can represent the tool of additional quality assurance of expert manufacture and will promote realisation of a principle of competitiveness and equality of the parties. In our opinion, in the criminal trial of the party and their representatives should be allocated by the right of attraction of experts for preparation of the conclusion of the expert, including containing scientifically-methodical reviewing of the expert's statements, criminal case without fail attached to materials.

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A source: Galinskaya Anna Evgenevna. USE of SPECIAL KNOWLEDGE In LEGAL PROCEEDINGS by the PARTIES And THEIR REPRESENTATIVES. The dissertation on competition of a scientific degree of the master of laws. Moscow -. 2017

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