Expert examinations

With the adoption of the new Criminal Procedure Code of Ukraine in 2012, approaches to the use of knowledge from individual specialists changed. This provided the parties to criminal proceedings with broader opportunities to use the institution of forensic examination and granted equal rights to both parties in presenting evidence in the form of an expert conclusion. According to the new Criminal Procedure Code of Ukraine, an expert may be engaged by both the prosecution and the defense.

According to Article 242 of the Criminal Procedure Code of Ukraine, expert examinations are conducted upon the request of a party to criminal proceedings, as well as by order of an investigating judge or court, to establish circumstances relevant to criminal proceedings that require special knowledge.

Article 243 of the Criminal Procedure Code of Ukraine stipulates that the prosecution engages an expert when there are grounds for conducting an examination, including upon a request from the defense or the victim.

In addition, Part 2 of Article 243 of the Criminal Procedure Code of Ukraine provides that the defense has the right to independently engage experts for conducting examinations on a contractual basis.

Thus, during court proceedings, two expert conclusions may be submitted regarding examinations conducted by different experts on the same issues — one commissioned by the prosecution and the other by the defense.

According to Part 4 of Article 7 of the Law of Ukraine “On Forensic Examination”, for certain types of examinations that are not conducted exclusively by state specialized institutions, other specialists in the relevant field of knowledge may also be involved, in addition to forensic experts, by decision of the person or authority that appointed the forensic examination.

In other words, specialists who have undergone appropriate training may be engaged as experts for conducting psychophysiological expert examinations.

In accordance with the requirements of the Criminal Procedure Code of Ukraine and the “Instruction on the Appointment and Conduct of Forensic Examinations and Expert Studies”, approved by the Order of the Ministry of Justice of Ukraine No. 53/5 dated 08.10.1998 (as amended by the Order of the Ministry of Justice of Ukraine No. 1950/5 dated 26.12.2012), registered with the Ministry of Justice of Ukraine on January 2, 2013, No. 1/22533, the results of a polygraph examination may be оформлені as:

• psychophysiological expert examination conclusion;
• expert psychophysiological study.

The procedure for conducting the examination remains unchanged in both cases. The only difference is that when conducting a psychophysiological expert examination, the polygraph specialist involved as an expert is warned of criminal liability under Articles 384 and 385 of the Criminal Code of Ukraine — respectively, for knowingly providing a false conclusion and for refusing to perform assigned duties.

On July 27, 2015, the Ministry of Justice of Ukraine issued Order No. 1350/5 dated 27.07.2015 “On Amendments to the Order of the Ministry of Justice of Ukraine No. 53/5 dated October 8, 1998” — “Amendments to the Instruction on the Appointment and Conduct of Expert Examinations and Expert Studies”. In particular, amendments were introduced to Section VI “Psychological Examination”:

6.8. In order to obtain indicative information, interviews may be conducted using a special technical device — a computer polygraph.

6.8.1. The subject of an interview using a special technical device — a computer polygraph — is obtaining indicative information regarding:

• the degree of probability of the information provided by the interviewed person;
• the completeness of the information provided by the interviewed person;
• the sources of information obtained by the interviewed person;
• the interviewed person’s perception of a specific event;
• other indicative information necessary for developing investigative versions of certain events.

6.8.2. Such interviews may only be conducted with the written consent of the person who will undergo the interview.

The duration of a psychophysiological expert examination for one person and one episode is 7–15 days and includes:

• 1–2 days — review of case materials;
• 1–2 days — preparation of specialized test questions;
• 2–3 days — direct testing and work with the examined person;
• 3–8 days — preparation of the expert conclusion (together with appendices, it consists of 30–50 pages).