of March 29, 2001 No. 1
About judicial examination on criminal cases
Having discussed materials of generalization of court practice, for the purpose of uniform application of the legislation and remedial action in case of production of examination in court the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts that conducting examination is necessary in all cases when for the solution of the questions which arose in case of legal proceedings special knowledge in science, the equipment, art, craft and other fields of activity is required (p.1 the Art. 61, p.1 of the Art. 95, p.1 of Art. 226 of the Code of Criminal Procedure).
2. Provide to courts observance of requirements of the criminal procedure law (Art. 228 of the Code of Criminal Procedure) on obligatory conducting examination if it was not carried out during pretrial investigation, for establishment: causes of death, nature and severity of bodily harms; age of the person accused, the victim when it matters for criminal case, and documents on age are absent or raise doubts; mental or physical condition of the person accused when there is doubt concerning sanity or capability independently to protect the rights and legitimate interests in criminal procedure; mental or physical condition of the victim when there is doubt in its capability correctly to perceive the circumstances important for criminal case and to give about them evidences.
3. The expert research can be conducted only by person designated as the expert in the procedure established by the law (p.1 the Art. 61, p.1 the Art. 227, p.1 Art. 334 of the Code of Criminal Procedure).
In case of determination of expert organization or the expert to whom conducting examination can be entrusted courts should consider that according to item 2 of the Presidential decree of the Republic of Belarus of September 14, 2003 No. 407 "About some measures for enhancement of judicial and expert activities" (The national register of legal acts of the Republic of Belarus, 2003, No. 105, 1/4928) the state judicial and expert organizations and divisions perform the activities without receipt of special permission (license).
Conducting examination can be entrusted to other organizations which are not the public judicial and expert institutions and also individual entrepreneurs in the presence at them the special permission (license) for implementation of judicial and expert activities issued in accordance with the established procedure.
In some cases (for example, in the absence of the expert having special knowledge in specific field of activity) the order of conducting examination to the expert person which does not have special permission (license) is allowed.
The court has the right to require from the expert called in judicial session the documents confirming its special qualification, and also data on its working experience and the relations with persons participating in production on materials and criminal case (subitems 3 and 4 of the p. 4 of Art. 61 of the Code of Criminal Procedure). Availability of the license for implementation of judicial and expert activities can be in case of need checked.
4. Expertize in judicial session is carried out according to rules of Chapter 26 of the Code of Criminal Procedure (the p. 2 of Art. 334 of the Code of Criminal Procedure). About purpose of examination or variation of the petition for its appointment determination (resolution) is taken out.
Availability in the conclusions of departmental inspections (about goods quality, shortage of inventory items, etc.), acts of audits, consultations of specialists (the p. 3 of Art. 227 of the Code of Criminal Procedure) cannot form the basis to refusal in purpose of examination. These documents cannot substitute expert opinions.
The court has no right to replace determination (resolution) on purpose of examination with other documents which are not provided by the law (the cover letter, the list of questions to the expert, etc.).
In case of lack of determination (resolution) on purpose of examination the expert opinion has no legal force and cannot be used as the proof (the p. 5 of Art. 105 of the Code of Criminal Procedure).
5. If during legal proceedings in case of appointment or conducting medicolegal or forensic-psychiatric examination there is need for stationary observation of the person accused, then the decision on it is made by court according to the petition of the parties or on own initiative about what determination (resolution) is taken out.
Conducting examination concerning the victim with observation in stationary conditions is not allowed without its consent or the consent of his parents or other legal representatives if the victim is minor. The victim can be subjected to out-patient examination in case of need to establish its age or mental or physical condition in case of doubts in its capability it is correct to perceive the circumstances important for criminal case and to give about them evidences (item 5 of the p. 2 of Art. 50 of the Code of Criminal Procedure).
Judicial expertize concerning the witness is carried out only from its consent or the consent of his parents or other legal representatives if the witness did not reach age of majority. It is agreed by specified persons in writing (the p. 3 of Art. 229 of the Code of Criminal Procedure).
6. For ensuring conducting examination in legal proceedings of case court according to requirements p.1 Art. 334 of the Code of Criminal Procedure has the right to resolve issue of challenge in judicial session of person having special knowledge including not carrying out expertize during pre-judicial production.
The expert's challenge in judicial session can take place in cases when:
a) on preliminary inquiry expertize for establishment of the facts of the case by means of special knowledge of the expert was not carried out, there was need and there is possibility of its carrying out by results of legal proceedings;
b) when conducting examination during preliminary inquiry the questions necessary for consideration of the case by court were not raised;
c) there are contradictions between research part of the conclusion and the expert's conclusions;
d) contradictory basic data are the basis for conclusions of the expert;
e) conclusions of the expert contradict other circumstances on case and this contradiction cannot be eliminated without participation of the expert;
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