Forensic Examination

Key Provisions of the Law of Ukraine “On Forensic Examination”

Below are the key provisions of the legislation defining the concept of forensic examination, the principles governing the activities of forensic experts, the grounds for conducting an examination, the rights and duties of an expert, and the requirements applicable to forensic expert activity.

Article 1. Concept of Forensic Examination

A forensic examination is an examination based on specialised knowledge in the fields of science, technology, art, crafts and other areas of objects, phenomena and processes for the purpose of providing an opinion on matters that are or will be the subject of court proceedings.

Article 4. Guarantees of the Independence of the Forensic Expert and the Accuracy of the Expert Opinion

The independence of the forensic expert and the accuracy of the expert opinion are ensured by:

• the procedure for appointing a forensic expert established by law;
• the prohibition, under threat of liability prescribed by law, of interference by any person with the conduct of a forensic examination;
• the existence of forensic examination institutions that are independent of bodies conducting operational-search activities, pre-trial investigation bodies and courts;
• the creation of the necessary conditions for the activities of the forensic expert, including appropriate material and social support;
• criminal liability of the forensic expert for knowingly providing a false opinion and for refusing, without valid reasons, to perform the duties assigned to them;
• the possibility of appointing a repeat forensic examination;
• the presence of participants in the proceedings during the forensic examination in cases provided for by law.

Article 5. Maximum Preservation of Objects of Examination

During forensic examinations, inspections and research, objects of examination may be damaged or consumed only to the extent necessary for conducting the examination.

Article 6. Ensuring Working Conditions for the Forensic Expert at the Location of the Objects of Examination

If a forensic examination must be conducted at the scene or at the location of the object of examination, the person or body that appointed the examination, or at whose request it is being conducted, must provide the forensic expert with unhindered access to the object of examination and appropriate working conditions.

Article 7. Entities Engaged in Forensic Expert Activity

Forensic expert activity is carried out by state specialised institutions and their territorial branches, municipally owned expert institutions, as well as forensic experts who are not employees of those institutions and other specialists (experts) in relevant fields of knowledge, in accordance with the procedure and conditions established by this Law.

State specialised institutions include:

• research institutions of forensic examination of the Ministry of Justice of Ukraine;
• research institutions of forensic examination, forensic medical institutions and forensic psychiatric institutions of the Ministry of Health of Ukraine;
• expert services of the Ministry of Internal Affairs of Ukraine, the Ministry of Defence of Ukraine, the Security Service of Ukraine and the State Border Guard Service of Ukraine.

Forensic expert activity involving criminalistic, forensic medical and forensic psychiatric examinations is carried out exclusively by state specialised institutions.

Article 7^–1. Grounds for Conducting a Forensic Examination (Inspection and Examination)

The grounds for conducting a forensic examination are a relevant court decision, a decision of a pre-trial investigation body, or an agreement with an expert or expert institution where the examination is conducted at the request of other persons.

The basis for obtaining a specialist opinion when establishing the circumstances of a criminal misdemeanour is a request from an official of an inquiry unit of the National Police, a security authority, the authority responsible for monitoring compliance with tax legislation, the State Bureau of Investigation, the National Anti-Corruption Bureau of Ukraine, or an authorised official of another unit of the aforementioned bodies empowered to conduct pre-trial investigations of criminal misdemeanours.

Article 10. Persons Who May Act as Forensic Experts

Forensic experts may be persons who possess the knowledge necessary to provide an opinion on the matters under examination.

Forensic experts of state specialised institutions may be specialists who have the relevant higher education, an educational qualification level not lower than Specialist level, have completed the relevant training and have obtained the qualification of a forensic expert in a particular speciality.

Forensic experts who are not employees of state specialised institutions may also be engaged to conduct forensic examinations, inspections and research, except for those conducted exclusively by state specialised institutions, provided that they have the relevant higher education, an educational qualification level not lower than Specialist level, have completed appropriate training at state specialised institutions of the Ministry of Justice of Ukraine, have been certified and have obtained the qualification of a forensic expert in a particular speciality in accordance with the procedure established by this Law.

A forensic expert is prohibited from using their powers for the purpose of obtaining an undue advantage or accepting a promise or offer of such an advantage for themselves or other persons.

A specialist in the relevant field of knowledge who conducts a forensic examination is subject to the provisions of this Law concerning the guarantees, rights, duties and liability of a forensic expert, except for liability for refusal to conduct an examination and the provisions of Section III of this Law.

Article 12. Duties of a Forensic Expert

Regardless of the type of proceedings and the grounds for conducting the examination, a forensic expert is required to:

1. conduct a complete examination and provide a reasoned and objective written opinion;
2. at the request of the person or body that engaged the expert, a judge or the court, provide explanations regarding the opinion given;
3. declare self-recusal where there are grounds provided for by law that preclude their participation in the case.

Other duties of a forensic expert are provided for by procedural legislation.

Article 13. Rights of a Forensic Expert

Regardless of the type of proceedings, a forensic expert has the right to:

1. submit requests for additional materials where the examination has been appointed by a court or pre-trial investigation body, or review case materials relating to the subject matter of the forensic examination;
2. indicate in the expert opinion facts identified during the forensic examination that are relevant to the case and in respect of which no questions were put to the expert;
3. with the permission of the person or body that appointed the forensic examination, be present during investigative or judicial actions and submit requests relating to the subject matter of the forensic examination;
4. submit complaints concerning the actions of the person conducting the proceedings where such actions infringe the rights of the forensic expert;
5. receive remuneration for conducting a forensic examination where its performance is not part of the expert’s official duties;
6. conduct expert research on a contractual basis on matters of interest to legal entities and individuals, subject to the restrictions provided for by law.

Other rights of a forensic expert are provided for by procedural legislation.

Legal Assistance in Forensic Examination Matters

Assessment of the need for an examination → preparation of questions and materials → analysis of the expert opinion received.

Conducting a forensic examination often requires not only the expert’s specialised knowledge but also proper legal preparation. It is important to determine which circumstances need to be established, which materials should be provided for examination and how the questions to the expert should be formulated.

The Bureau’s advocates will help analyse the circumstances of the case, determine whether a forensic examination is necessary, prepare the relevant procedural documents and assess the expert opinion in the context of the legal position in the case.