of March 31, 2016 No. 1
About accomplishment of the resolution of the Plenum of the Supreme Court of the Republic of Belarus by courts of March 29, 2001 No. 1 "About judicial examination on criminal cases" and introduction in it of changes and amendments
The plenum of the Supreme Court of the Republic of Belarus notes that with increase in level of scientific knowledge, development of technologies, enhancement of the equipment possibilities of expert researches extend, the role and value of judicial examination in case of production on criminal cases increase.
With respect thereto observance of established procedure of appointment and conducting examinations is important for removal of legal and reasoned decisions by courts.
Results of studying and generalization of court practice demonstrate that courts generally correctly resolve the questions connected with appointment and conducting examinations. It is objectively promoted by the explanations containing in the resolution of the Plenum of the Supreme Court of the Republic of Belarus of March 29, 2001 No. 1 "About judicial examination on criminal cases".
At the same time in work of the courts there are also shortcomings. Mistakes in case of permission of petitions of participants of process for purpose of examinations, statement before experts of questions are made, collection of the examinations of procedural costs connected with carrying out. Not always expert opinions receive proper assessment in sentences that in some cases attracts cancellation of judgments.
For the purpose of ensuring the correct and uniform application of the legislation, prevention of miscarriages of justice the Plenum of the Supreme Court of the Republic of Belarus decides:
1. Draw the attention of courts to need of strict observance in case of the appointment and conducting examinations of requirements of the legislation and explanations containing in the resolution of the Plenum of the Supreme Court of the Republic of Belarus of March 29, 2001 No. 1 "About judicial examination on criminal cases".
2. By consideration of criminal cases courts should provide conducting examinations when special knowledge in science, the equipment, art, craft and other fields of activity is necessary for the correct permission of case. Not allow cases of unreasonable variation or leaving without consideration of petitions of participants of criminal procedure for purpose of examination.
3. Regional, Minsk city to courts periodically to analyze practice of appointment and conducting examinations on criminal cases, to react timely to the violations allowed by courts, to take measures to error correction by hearing of cases in appeal procedure.
4. Bring in the resolution of the Plenum of the Supreme Court of the Republic of Belarus of March 29, 2001 No. 1 "About judicial examination on criminal cases" (The national register of legal acts of the Republic of Belarus, 2001, No. 39, 6/276; 2012, No. 44, 6/1144) following changes and amendments:
4.1. state Item 3 in the following edition:
"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.";
4.2. in item 4:
in part one:
words" about what determination (resolution) is taken out" to exclude;
add part with the second offer of the following content: "About purpose of examination or variation of the petition for its appointment determination (resolution) is taken out.";
after part one to add Item with part of the following content:
"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.";
second and third to consider parts respectively parts three and the fourth;
4.3. add Item 5 with parts two and third the following content:
"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).";
4.4. exclude Item 8;
4.5. the fifth Item 9 to add part with the second offer of the following content: "The person who was not carrying out expertize in case of pre-judicial production, having the right to take part in discussion of questions and research of the circumstances relating to examination subject after appointment it as the expert on this case (p.1 Art. 334 of the Code of Criminal Procedure).";
4.6. in Item 10:
in part one of the word "in determination of court or the judge's ruling" shall be replaced with words "and can be stated in determination (resolution) on purpose of examination or in separate determination (resolution)";
add Item with part four of the following content:
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