Classification of Forensic Examinations in the Arbitration Process

At present, arbitration courts consider a large number of disputes, the correct resolution of which requires the use of special knowledge.

The Russian legislation does not provide for a legal definition of the concept of special knowledge. At the same time, in the traditional legal literature, this term is understood as a system of theoretical knowledge and practical skills in the field of a specific science or technology, art or craft, acquired through special training or professional experience and necessary to resolve issues arising in the judicial process. Moreover, well-known, as well as legal knowledge is usually not classified as special (see, for example: Rossinskaya E.R. Forensic Examination in Civil, Arbitration, Administrative and Criminal Process, Moscow, 2005).

At the same time, when we talk about the application of special knowledge in the judicial process, we are talking about the procedural form of their application, which is expressed in the form of a forensic examination and specialist consultation.

Thus, in accordance with Part 2 of Article 64 of the Arbitration Procedure Code of the Russian Federation, "written and material evidence, explanations of persons participating in the case, expert opinions, expert consultations, witness testimony, audio and video recordings, and other documents and materials are admissible as evidence".

The expert's opinion is the main type of application of special knowledge in the arbitration process and consists in the preparation by the expert of a written opinion, which is drawn up on the basis of the study on the issues posed to the expert by the court.

Classification of forensic examinations and possible errors

Forensic examination can be classified on various grounds.

Depending on the scope of the study, examinations are divided into basic and additional.

The main examination is appointed if in the process of considering the case the court has issues that require special knowledge.

In accordance with Part 1 of Article 82 of the Arbitration Procedure Code of the Russian Federation, an expert examination is appointed by the court at the request of a person participating in the case, or with the consent of the persons participating in the case, and if the appointment of an expert examination is prescribed by law or provided for by a contract, or is necessary to verify an allegation of falsification of the evidence submitted, or if it is necessary to conduct an additional or repeated examination, the commercial court may appoint an expert examination on its own initiative.

At the same time, in accordance with the provisions of Article 8 of the Federal Law "On State Forensic Activities in the Russian Federation" (hereinafter referred to as the "Federal Law of the State Forensic Expert System"), an expert conducts research objectively, on a strictly scientific and practical basis, within the relevant specialty, comprehensively and in full.

The expert's conclusion should be based on provisions that make it possible to verify the validity and reliability of the conclusions made on the basis of generally accepted scientific and practical data.

In case of non-compliance with the requirements for a forensic expert opinion, it cannot serve as proper evidence in the arbitration process.

Defects in the expert's opinion arise due to expert errors.

Thus, in particular, in the process of conducting research and preparing a conclusion, an expert can go beyond his competence, substantiate his conclusions with the materials of the case, and not the results of the study, begin to independently collect materials for the examination, there may be internal inconsistency of the expert study and other errors.

Additional, primary and repeated examinations

Depending on the nature of the errors, their elimination can be solved by appointing an additional or repeated examination.

In accordance with Part 1 of Article 87 of the Arbitration Procedure Code , "in case of insufficient clarity or completeness of the expert's opinion, as well as in case of questions regarding the previously investigated circumstances of the case, an additional examination may be appointed, which shall be entrusted to the same or another expert".

Thus, if the expert error does not affect the expert's conclusions, an additional examination may be appointed to specify or clarify the results of the study of the main examination.

An additional examination may also be appointed in cases where after the expert examination new questions arise in relation to the same object, which were not posed to the expert during the main examination.

Additional examination, as a rule, is entrusted to the same expert who conducted the main examination, since he is already familiar with the case materials and the object of the study.

Thanks to the additional examination, the errors made by the expert at the stage of the main examination can be corrected and full conclusions based on the results of the study can be given.

It should be noted that since the additional examination is appointed to clarify and clarify the results of the main examination, the conclusions of the additional examination cannot contradict the conclusions of the main examination.

Depending on the sequence of the examination, it is possible to distinguish between primary and repeated examinations.

In accordance with Part 2 of Article 87 of the Arbitration Procedure Code, "in case of doubts about the validity of the expert's opinion or the presence of contradictions in the conclusions of the expert or the commission of experts on the same issues, a second examination may be appointed, the conduct of which shall be entrusted to another expert or another commission of experts".

The grounds for the appointment of a second examination may, in particular, be the contradiction of the conclusion of the primary forensic examination with the objectively existing and established circumstances of the case; procedural errors made in the process of appointing an initial examination (for example, entrusting the examination to an expert who does not have the appropriate competence), doubts about the scientific validity of the methodology used in the conduct of the primary examination.

The re-examination is carried out in relation to the same objects and on the same materials as the primary examination, but cannot be entrusted to the same expert who conducted the initial examination, because one of the purposes of the re-examination is to verify the process and results of the previous examination. In the event that additional objects need to be examined for the completeness of the study, such an examination will be additional.

Expert examinations based on the number of experts

According to the number of experts conducting the study and their specialty, the examination can be single, commission and complex.

In accordance with Article 84 of the Arbitration Procedure Code of the Russian Federation, "A commission examination shall be carried out by at least two experts of the same specialty. The commission nature of the examination is determined by the arbitration court.

If, based on the results of the research, the opinions of the experts on the issues raised coincide, the experts draw up a single conclusion. In the event of disagreements, each of the experts who participated in the examination shall give a separate opinion on the issues that caused the disagreements of the experts."

According to the provisions of Article 85 of the Arbitration Procedure Code of the Russian Federation, "A comprehensive examination shall be carried out by at least two experts of different specialties.

The expert opinion indicates what research and to what extent each expert has conducted, what facts he has established and what conclusions he has reached. Each expert who participated in the comprehensive examination shall sign the part of the report that contains a description of the studies carried out by him/her, and shall be responsible for it.

The general conclusion is made by experts who are competent in assessing the results obtained and formulating this conclusion. In the event of disagreements between experts, the results of the research shall be drawn up in accordance with Part 2 of Article 84 of this Code."

Commission examinations are appointed by the court in particularly complex cases (for example, with a large number of objects of research), or when it is necessary to conduct a second examination.

At the same time, in accordance with Article 17 of the Federal Law of the State Forensic Examination Service, an expert has the right, among other things, to petition the head of the relevant state forensic institution to involve other experts in the forensic examination, if this is necessary to conduct research and give an opinion. Thus, such an examination will be a commission, and the conclusion may be recognized as inadmissible evidence, since in accordance with Article 84 of the Arbitration Procedure Code of the Russian Federation, the commission nature of the examination should be determined by the arbitration court.

A distinctive feature of commission and complex expertise is the fact that commission examinations are carried out by a commission of experts of the same specialty, while experts of different specialties participate in the conduct of a comprehensive examination.

Based on the meaning of the provisions of Article 85 of the Arbitration Procedure Code of the Russian Federation, a comprehensive examination is always carried out by a commission of experts of different specialties and cannot be carried out by one expert versed in different fields of knowledge.

Thus, when conducting a comprehensive examination, experts of different specialties answer questions based on their field of knowledge, and make a general conclusion. Thus, a comprehensive analysis of the features takes place.

Subject classification

Thus, there are various classes of forensic examinations, the division into which is determined by the field of application of special knowledge. Classes of expertise, in turn, are divided into types of examinations, genera – into types, types – into subtypes.

As an example, we can cite the class of speech examinations, the object of which is the speech products of human activity. This class of expertise includes linguistic, author's, handwriting examinations and other types of examinations, each of which has its own tasks and research methods.

For example, author's expertise solves, among other things, identification tasks related to the establishment of the authorship of texts (for example, works). Such an examination may be appointed, inter alia, in disputes related to the establishment or refutation of the authorship of a work, in disputes on the protection of business reputation, etc.

A handwriting examination, for example, can be appointed in connection with the verification of an application for falsification of the submitted evidence, if it is necessary to establish the authenticity of the signature on the document.

Thus, we see that there are different types of examinations, the classification of which occurs on different grounds and which contribute to the correct resolution of the case.