scholarly journals REVIEW OF THE CONCLUSION OF A COURT EXPERT AND THE WRITTEN EXPLANATION OF THE SPECIALIST: SIMILARITY AND DIFFERENCE

2020 ◽  
pp. 52-63
Author(s):  
M. Shcherbakovskyi
Keyword(s):  
Expert Opinion ◽  
Validity And Reliability ◽  
Scientific Validity ◽  
Procedural Law ◽  
The Status ◽  
Expert’S Opinion ◽  
Special Knowledge ◽  
Court Proceedings ◽  
Similarity And Difference ◽  
Court Expert

Reviewing the conclusions of forensic experts is regulated by the procedure developed by the Ministry of Justice of Ukraine. The immediate purpose of the review is to establish the conformity of the study to the approved expert methods, to draw up an expert opinion on the procedural and departmental requirements. The ultimate goal of reviewing is to determine whether the conclusion form complies with the requirements of the law, the scientific validity of the expert opinion as a source of evidence, and the competence of a forensic expert. External reviewing is carried out in accordance with the plans of the Ministry of Justice for experts preparing to receive or confirm their qualifications. Internal peer review is carried out in expert institutions as ongoing quality control of examinations. Gross violations in expert studies have been identified, and organizational and procedural consequences are being drawn, which include sending a court notification about the inaccuracy of the examination. The use of reviews of expert conclusions in court proceedings as a source of evidence is unacceptable, since this document is not provided for by the procedural law, there are no guarantees of the independence and disinterest of the reviewer, reviews do not contain data on the actual circumstances of the dispute or offense. The purpose of providing reviews that are not compiled by the staff of expert institutions is to discredit the authority and professional reputation of forensic experts, leveling their conclusions. At the same time, there is an objective desire of the court to involve knowledgeable persons in the assessment of expert research. This is due to the fact that the parties and the court do not have special knowledge, which make it possible to assess the validity and reliability of the expert’s opinion. The procedural form for establishing these circumstances is to use the help of knowledgeable persons who may be involved as specialists to provide clarifications on issues within their competence. The specialist research the scientific and methodological side of expert examination. A written explanation of a specialist is a procedural document that is prescribed by law, but it does not have the status of a source of evidence. If the specialist provides an explanation that contains a negative response to the expert’s opinion, the judge must invite the expert and expert for interrogation to provide explanations. After hearing a specialist and expert, the court may come to the conclusion that the forensic examination was carried out correctly or, conversely, there are doubts about the reliability of the study and the grounds for appointing a new or repeated examination.

scholarly journals PROBLEMS IN THE EXERCISE OF THE INDEPENDENCE OF JUDGES IN ASSESSING AN EXPERT OPINION IN A CRIMINAL CASE

2020 ◽  
Vol 16 (4-2) ◽  
pp. 115-129
Author(s):  
Ирек Гизатуллин
Keyword(s):  
Law Enforcement ◽  
Expert Opinion ◽  
System Analysis ◽  
Judicial Independence ◽  
Criminal Case ◽  
Specialized Knowledge ◽  
Expert Opinions ◽  
The Status ◽  
Expert’S Opinion ◽  
Special Knowledge

The article analyzes some procedural and non-procedural factors that prevent the judge from assessing the expert's opinion in a criminal case freely. The article states that, in the existing law enforcement realities, the expert's opinion acquires the status of an absolute evidence having a pre-determined value. This is due to the de facto lack of competition between the parties in the procedures for appointing and producing an examination, as well as to the difficulty of assessing this type of evidence by a judge in the absence of special knowledge for that. Purpose: to develop theoretical provisions justifying the need to improve the procedures for the appointment and production of expert opinions, as well as the assessment of expert opinions by the court, in order to ensure judicial independence. The paper uses the methods of system analysis, synthesis, sociological polling and generalization. The author concludes that ensuring the freedom of judge’ inner conviction when assessing an expert's opinion directly depends on expanding the possibilities of using an alternative opinion of another person with a specialized knowledge in the same area - the expert's opinion and testimony. In this regard, it is proposed that the law should make it mandatory to grant requests by parties for expert opinions to be admitted and examined in court, and that the results of such research should be reflected in the text of the court decision on the case.

scholarly journals Peran Ahli Hukum dalam Persidangan Mahkamah Konstitusi

2020 ◽  
Vol 16 (4) ◽  
pp. 740
Author(s):  
Bisariyadi Bisariyadi
Keyword(s):  
Decision Making ◽  
Expert Opinion ◽  
Constitutional Law ◽  
Constitutional Court ◽  
Procedural Law ◽  
Expert’S Opinion

Mahkamah Konstitusi kerap membuka persidangan dengan agenda mendengar keterangan ahli hukum sebagai bagian dari pembuktian. Hal ini menjadi sebuah kelaziman yang dipraktekkan tanpa adanya kritisi. Keberadaan ahli hukum dalam sebuah forum yang dipimpin oleh majelis hakim yang dianggap memenuhi persyaratan akan penguasaan isu konstitusi dan ketatanegaraan, secara tersirat, berarti mempertanyakan kualifikasi dari hakim konstitusi itu sendiri. Tulisan ini bermaksud mencari tahu mengapa praktek mendengar keterangan ahli hukum dalam persidangan Mahkamah Konstitusi dilakukan. Selain itu, tulisan ini juga bermaksud untuk memberi masukan dalam hukum acara agar peran ahli hukum yang didengar keterangannya tidak memasuki ranah wewenang majelis hakim dalam menafsirkan konstitusi. Dalam rangka mencapai tujuan penulisan, pembahasan dalam tulisan ini dibagi dalam empat bagian yaitu (i) mengidentifikasi kriteria siapa yang disebut sebagai ahli; (ii) melihat kedudukan keterangan ahli sebagai alat bukti dan bagaimana majelis hakim menilai alat bukti tersebut; (iii) menelisik pengaruh keterangan ahli dalam pengambilan putusan oleh majelis hakim konstitusi dalam praktek selama ini, dan (iv) mengukur apakah keterangan ahli hukum masih dibutuhkan dalam proses persidangan di Mahkamah Konstitusi.      The Constitutional Court has often heard the opinion of legal experts as part of the examination of evidence. This is a common practice that was taken for granted. The very notion of having legal experts opinion in a forum led by judges who considered tohave  meet the qualification to be an experts in constitutional law is implicitly, means questioning the experties of the constitutional judges itselves. This paper intends to find out why the practice of hearing the legal experts opinion in the trial of the Constitutional Court still occurs. In addition, this paper also intends to provide input in the procedural law so that the role of legal experts does not enter the domain of the judges in interpreting the constitution. In order to achieve the objectives, the discussion in this paper is divided into four parts, (i) identifying the criteria of who is qualified as an expert; (ii) assess  the position of expert's opinion as evidence and how the panel of judges evaluate the evidence; (iii) examine the influence of expert opinion in decision making, and (iv) measure whether legal experts opinion is still necessary in the trial of the Constitutional Court.

scholarly journals Victim in competitive criminal procedure

2020 ◽  
Vol 1 (1) ◽  
pp. 175-183
Author(s):  
Volovymyr Tertyshnyk
Keyword(s):  
Legal Representative ◽  
Criminal Proceedings ◽  
State Budget ◽  
The Rule Of Law ◽  
Case File ◽  
The Status ◽  
Expert’S Opinion ◽  
Court Proceedings ◽  
The Moment ◽  
Procedural Rights

The article analyses problems of determining ways to improve the procedural procedure to protect the rights and freedoms of victim in the legal field of competitive criminal justice. The issue of improving the status of the victim, extending his rights, determining the procedure for its implementation stipulated by law, harmonization of legislation, elimination of legal conflicts, ensuring the rule of law, strengthening guarantees The rights and freedoms of the victim. Aligning the CPC of Ukraine with the Constitution of Ukraine, and coordinating it with the Civil Code of Ukraine and applicable international legal acts, we propose in the norm of the CPC of Ukraine, which determines the status of the victim, in addition to the rights established there by the law, to set out the following rights of the victim: a) to demand compensation for the moral harm caused and physical and pecuniary damages at the expense of the person guilty of the crime or persons who are financially responsible for their actions, and in cases where the person who committed the crime is not identified, for ahunok State budget; b) to respect his honor and dignity, to demand that facts of the collection, use, storage and disclosure of the degrading honor, dignity or business reputation of false information be prevented, and, if necessary, make a request for the removal of such information, raise the issue of closed court proceedings ; c) require arrest of the defendant's deposits and property and take other measures provided by law to recover the damage caused to him by the crime; d) require personal immediate examination by a forensic expert in case of personal injury or harm to his / her health; e) to use the legal assistance of a legal representative from a lawyer or other specialist in the field of law from the moment of recognition as a victim; g) have a confidential date with the legal attorney before the first interrogation, as well as the presence of a lawyer or legal representative at his first interrogation; g) to be acquainted with the decision on the appointment of forensic examination and the expert's opinion; h) to get acquainted with the case file in the suspended criminal proceedings on the grounds of not identifying the perpetrator; i) to participate directly in the examination of all evidence at the trial and to speak in court, regardless of the participation of the prosecutor. The investigator, the inquirer, the prosecutor, the court are obliged to immediately explain to the victim his procedural rights, to hand him a written document describing his rights - a declaration of the victim's rights, to immediately take the measures provided by law for ensuring the victim's rights. Prospects for further study of this problem are seen in the development of models of realization of the victims of their procedural rights at different stages of the process.

scholarly journals Assessing the admissibility and reliability of an expert’s conclusion by an investigator in the investigation of crimes in the field of financing targeted social programs

2020 ◽  
Vol 3 (3) ◽  
pp. 256-264
Author(s):  
Dmytro Viter
Keyword(s):  
Point Of View ◽  
Sources Of Information ◽  
Criminal Proceedings ◽  
Scientific Validity ◽  
Procedural Law ◽  
Logical Connection ◽  
Material Sources ◽  
Logical Sequence ◽  
Expert’S Opinion ◽  
Expert Study

It is emphasized that the general criteria for evaluating an expert’s opinion are its relevance, admissibility, reliability and interconnection with other evidence in criminal proceedings on crimes in the field of financing social target programs. The admissibility of an expert’s opinion implies compliance with all formal re-quirements stipulated by law when working with him, as well as with other evidence. It is indicated that admissibility should be attributed only to the form, not touching the content of the evidence, since when assessing an expert’s opinion it will be important to establish the correctness of its design and the availability of all the details required by law. It is proved that in order to confirm the admissibility of the expert’s opinion, the investigator needs to determine whether the requirements of the procedural law were met with respect to the subject of research, material sources of information, means, techniques and other conditions for obtaining an expert’s opinion. In addition, when evaluating the expert’s opinion, it must be taken into account that the admissibility of objects examined by the expert also affects its admissibility. It is emphasized that admissibility, as a property of proof, is closely related to its other property - reliability. A formal reliability assessment is described, which involves checking the sufficiency of the material provided for the study, the source data; correspondence of the number of conclusions to the number of questions posed. The author also focused on assessing the meaning of the expert’s opinion, which is aimed at establishing the comprehensiveness, scientific validity, logical sequence, correctness and persuasiveness of the information it contains. When assessing an expert’s opinion from the point of view of its reliability, the investigator also evaluates the validity, which includes the completeness, persuasiveness and objectivity of both the conclusion itself and the expert study conducted. It is separately indicated that the motivation of the expert’s conclusion is a component of its reliability and indicates the presence of a logical connection between individual sections or parts of the expert study, intermediate and final conclusions of the examination, which is why the conclusions should logically follow from the expert’s research. Also emphasized is the need to assess the expert’s competence and competence when assessing the admissibility of an expert’s opinion. The detailed characteristic of the mentioned criteria for assessing the expert opinion is given.

METHODOLOGY AND OBJECTS OF ASSESSMENT OF THE EXPERT’S OPINION BY THE STATE PROSECUTOR

2020 ◽  
Vol 10 (3) ◽  
pp. 164-169
Author(s):  
ELENA PAVLOVA ◽  
Keyword(s):  
Research Methods ◽  
Expert Opinion ◽  
Cognitive Process ◽  
Practical Experience ◽  
Expert Opinions ◽  
Analysis And Synthesis ◽  
Expert’S Opinion ◽  
Special Knowledge ◽  
Definition Of ◽  
A Charge

Purpose of the study. Consideration of the problems existing in the practice of analysis, assessment and use of expert opinions by public prosecutors, and their causes. The study of the methodology for the implementation of this activity as a combination of:a) theoretical principles and practical methods, research methods that the prosecutor applies to assess the relevance, admissibility, reliability of the expert’s opinion; b) a system of principles and methods for studying the laws in accordance with which the process of this assessment proceeds. The author briefly considers the principles of: a) legality; b) science; c) systemic; d) objectivity included in the set of principles on which the assessment of the expert’s opinion is based. The author proposes the sequence of the prosecutor’s decision to analyze and evaluate the expert’s opinion, considered as the most rational way of this activity. The set of questions clarified in this case is considered both as a task and as a set of objects of assessment. These objects are divided into two groups, depending on the nature of the main issues to be solved; 1) concerning the assessment of the possibility of using one or another expert opinion as evidence of a charge in court; 2) relating to the definition of tactics of their submission to the court and participation in their research. The article provides examples of the use of individual research methods and assessment of expert opinions: comparative legal, analogy, analysis and synthesis. The results of the study . The analysis and assessment of the expert’s opinion is a complex cognitive process that requires legal and special knowledge, practical experience, knowledge of the methodology of this work from prosecutors. Its use in compliance with the principles that it is based on is one of the ways to increase the professional level of public prosecutors.

Reliability evaluation of a forensic expert's opinion: World practices and Ukrainian realities

2021 ◽  
Vol 28 (2) ◽  
pp. 252-261
Author(s):  
Volodymyr A. Zhuravel ◽  
Violetta E. Konovalova ◽  
Galina K. Avdeyeva
Keyword(s):  
Expert Opinion ◽  
Forensic Analysis ◽  
Legal Analysis ◽  
Criminal Proceedings ◽  
Expert Opinions ◽  
Expert’S Opinion ◽  
General Scientific ◽  
Special Knowledge ◽  
The Subject ◽  
Modelling And Forecasting

Improving the activities of pre-trial investigation and judicial review largely depends on the increased use of special knowledge in forensic investigative practice and, above all, the involvement of an expert and their analysis. The relevance of the subject matter is explained by the need to introduce new forms and approaches to evaluating the reliability of expert opinions, in particular with the involvement of independent specialists of the corresponding speciality. The purpose of this study was to provide arguments regarding the expediency of attracting knowledgeable persons as reviewers to evaluate the objectivity and completeness of forensic analysis, the correctness of the methods and techniques applied by the expert, and the validity of the opinion. To achieve this purpose, the following general scientific and special research methods were used: Aristotelian, comparative legal, functional, sociological, statistical, system and formal legal analysis, legal modelling, and forecasting. It was established that in the vast majority of countries of the world, except Ukraine, an independent, knowledgeable person with special knowledge in the corresponding field is involved to help evaluate the reliability of an expert opinion. It was proved that contacting knowledgeable persons to evaluate the objectivity, validity, completeness of expert research helps establish the causality between the identified features of the object of analysis and the fact that is subject to establishment, and also gives grounds for determining the affiliation, admissibility, reliability, and sufficiency of the expert opinion. At the same time, a specialist's review cannot serve as a source of evidence, but only has an auxiliary (advisory, technical) nature and can serve as a basis for appointing a second (additional) forensic analysis or a cross-examination of the expert and the reviewer. To exercise the rights of individuals to fair justice, it is proposed to introduce this procedure for evaluating the reliability of expert opinions in Ukraine, with the necessary changes in the current procedural legislation of Ukraine to provide an opportunity for participants in criminal proceedings and the victim to attract knowledgeable persons as reviewers of expert opinions

scholarly journals THE USE OF SPECIAL KNOWLEDGE IN CRIMINAL AND ADMINISTRATIVE COURT PROCEEDINGS

2021 ◽  
pp. 148-162
Author(s):  
O. Humenskyi
Keyword(s):  
Specific Activity ◽  
Cognitive Activity ◽  
Criminal Proceedings ◽  
Scientific Validity ◽  
Legal Proceedings ◽  
Direct Form ◽  
Special Knowledge ◽  
The Subject ◽  
Court Proceedings ◽  
Correct Understanding

A correct understanding of special knowledge is an important condition for its application in all necessary cases, due to the need for legal proceedings. Special features that characterize special knowledge are the following: – this knowledge is not generally known, generally available and unit; – a person in the process of theoretical and practical preparation for a specific activity acquires them; – are used not once; – are provided in indirect form, not direct form; – are involved in the process in accordance with the procedure established by law if the participants in the process have a need for this kind of knowledge; – are used in the forms provided for by procedural legislation; – its use is associated with a certain level of education and/or training, as well as professional or other experience; – such knowledge helps to ensure the adoption of a lawful and justified act of the pre-trial investigation bodies and the court as a judicial authority. The basis of special knowledge must necessarily be theoretical, scientific validity. Special knowledge in criminal proceedings is knowledge and skills obtained as a result of special education and/or practical activity in any field of science, technology, art or craft, which are used by the participants in the process determined by the law within the powers granted to each of them to solve procedural tasks according to a certain procedure. Special knowledge is personalized knowledge acquired and assimilated by a specific person in the process of cognitive activity. In addition, the understanding of cognition as an activity to achieve knowledge corresponds to the concept of judicial cognition as a process for the formation of knowledge about the circumstances that are significant for the correct consideration and resolution of the case. The basis for the use of special knowledge is the need for it in order to obtain evidence-based information: 1) by establishing in the process of research facts that cannot be obtained in another way (examination); 2) by using special knowledge to provide advice, clarifications, assistance in formulating questions to an expert or the commission of other procedural actions. Depending on the subject, type of activity and the purpose of its application, procedural and non-procedural forms of using special knowledge are distinguished. Depending on the legal purpose, the distribution of forms of using special knowledge is carried out as follows: if new evidence is formed using special knowledge, this is a procedural form; if special knowledge is used for the internal conviction of the subject of proof, this is a non-procedural form.

scholarly journals PROBLEMIC ASPECTS OF THE PARTICIPATION OF THE FORENSIC EXPERT IN THE ECONOMIC COURT PROCEEDINGS

2021 ◽  
pp. 10-20
Author(s):  
T.A. Revyakina ◽  
Keyword(s):  
Structural Method ◽  
State Register ◽  
Legal Method ◽  
Variable Nature ◽  
Economic Process ◽  
The Status ◽  
Procedural Code ◽  
Special Knowledge ◽  
Forensic Expert ◽  
Court Proceedings

The purpose of the article is to study the problematic aspects of the participation of a forensic expert in the economic proceedings of Ukraine. The reliability of the results and conclusions obtained is provided by a combination of research methods at the general scientific and special levels. In particular, from the standpoint of the systemic-structural method, the authors clarified the specifics of the change in the status of an expert as one of the other participants in the trial after the reform of the economic procedural legislation. Using the formal-logical method, the author identifies the forms of expert participation in the business process and the mechanism for their implementation. Using the comparative legal method on examples of judicial practice, the content and correlation of the legal and procedural status of an expert in economic proceedings are revealed. It is argued that the connection, interdependence and mutual transitions of the subject link of economic proceedings of the form: expert—judicial examiner—expert-professional correspond to the categories general—special—single. The provision on the variable and periodic nature of acquiring the economic procedural status of an expert has been substantiated, the nature of the grounds for its acquisition has been classified into types of imperative, imperative blanket, dispositive, dispositive-blanket and forms of expert participation in the economic process according to the criteria of territoriality, the content of expert and procedural activities. It has been established that, in accordance with the Economic Procedural Code of Ukraine, an expert can be appointed by the court or attracted by a participant in the case, that is, act as a subject who can be entrusted with the direct examination, such persons should be considered as: a state forensic expert; private forensic expert; professional expert. It is proposed to consider it a general requirement for them to possess the special knowledge necessary to provide a reasoned and objective written opinion on the questions posed. A special requirement for forensic experts is their inclusion in the state Register of certified forensic experts. The provision on the variable nature of the acquisition of the procedural status of an expert on the initiative of other persons, which this person receives periodically and does not possess permanently—at the time of assignment (appointment or involvement) to him, to conduct and formalize the results of expert proceedings at the stages of pretrial investigation and judicial consideration of a specific economic case, has been substantiated. The article proves the provision on the dynamism of the requirements for the number of experts and the quality (class, experience, industry) of their special knowledge, which mainly depend on the type (primary, additional, repeated, commission, complex) and complexity of the examination of the case. It has been established that the mechanism for implementing the forms of participation of an expert in the economic process is of a binding nature, in which the expert acts as an obliged person regarding arrival at the court upon his summons on the basis of his own initiative or at the request of the participants in the case.

scholarly journals FEATURES OF THE PURPOSE OF THE PURPOSE AND CONDUCT OF ECONOMIC EXPERTISES AND EXPERT RESEARCH IN THE PERFORMANCE OF THE TAX INSPECTION AND THE APPEAL OF THE RESULTS

2020 ◽  
pp. 525-533
Author(s):  
K. Proskura ◽  
O. Lukova
Keyword(s):  
General Information ◽  
Financial Indicators ◽  
Strong Argument ◽  
Legal Proceedings ◽  
Expert’S Opinion ◽  
Tax Audit ◽  
Court Proceedings ◽  
The Moment ◽  
The Right ◽  
Court Expert

The article examines in detail the procedures and features of the use of judicial expertise in the process of conducting tax audits by both controlling bodies and taxpayers, and when appealing the results of tax audits. According to the results of the tax audit of economic entities, in case of detection by tax inspectors of tax offenses, an act of inspection is drawn up, which contains a detailed description of the general information about the taxpayer, financial indicators, base and amounts of taxes paid for the audited period, as well as the content and amounts of the identified audits. tax offenses. In the event that the audit reveals tax offenses and the results of consideration of objections (if any), no adjustments have been made to the act of inspection, the controlling authority sends to the taxpayer a tax notification-decision on the amount of tax liability charged on the results of the check to be paid. In case of disagreement with such amount, the taxpayer has the right to appeal within 10 days such tax notification-decision in the administrative order or at any moment within three years from the moment of its issuance – in court. Being a procedural document, the conclusion of a court expert can be a proof in court, is a strong argument when making decisions in tax disputes and an effective tool for protecting the taxpayer from illegal and biased decisions made by officials of the tax authority on the results of tax audit. In addition to judicial examinations, parties to the dispute (usually a taxpayer) may be assigned expert research, is not a procedural document, but can be a powerful document in proving a party of its correctness in a tax dispute. An important point is the correct formulation of the questions posed to the expert (their focus on resolving disputes, their compliance with the competence of the expert-economist, the lack of a legal component that the expert-economist has no right to consider) and compliance with procedural requirements in the course of court proceedings, since in all types of legal proceedings the expert’s opinion is a procedural document.

ASAS TERBUKA UNTUK UMUM DAN KEHADIRAN FISIK PARA PIHAK DALAM SIDANG DI PENGADILAN NEGERI PASCA PERATURAN MAHKAMAH AGUNG NOMOR 1 TAHUN 2019

2020 ◽  
Vol 6 (1) ◽  
pp. 237-250
Author(s):  
Bernadette M Waluyo
Keyword(s):  
Supreme Court ◽  
Basic Principle ◽  
Civil Law ◽  
The Other ◽  
District Court ◽  
Procedural Law ◽  
Other Hand ◽  
Administration Of Justice ◽  
Law Courts ◽  
Court Proceedings

The Indonesian Supreme Court, in response to the information era, modernizes the civil procedural rules at the district court level.  This is done by issuing Supreme Court Regulation no. 1 of 2019 re. Administration of Justice at Civil Law Courts and Electronic-Court Proceedings. Undoubtedly, modernization of existing rules on the administration of justice is much needed.  On the other hand, these changes may violate a number of procedural civil law principles.  The author argues, from a civil procedural law perspective, that the above Supreme Court regulation violates the basic principle of transparency of court proceedings and physical attendance at court proceedings. 

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