The Forensic Expertise Section of intellectual property objects of the Scientific Advisory and Methodological Council under the Ministry of Justice of Ukraine adopted a decision on “reviews of the conclusions of forensic experts” conducted by forensic experts who are not employees of state specialized institutions or other individuals.
Having considered, pursuant to the decision of the Forensic Expertise Section of intellectual property objects of the Scientific Advisory and Methodological Council on Judicial Expertise Issues under the Ministry of Justice of Ukraine (hereinafter – the Section) of May 18, 2017, at the round table “Review of conclusions of forensic experts: grounds of the appointment, content, procedural status” (Kyiv, September 13, 2017), with the participation of forensic science research institutions, the Scientific and Research Institute of Intellectual Property of the NALS of Ukraine, the Association of Lawyers of Ukraine, judges, attorneys, patent and legal companies, patent attorneys, scientists, and at the meeting of the Section on November 6, 2017, have decided on the following principal provisions on the practice of providing so-called “Reviews of the conclusions of forensic experts” conducted by forensic experts who are not employees of state specialized agencies, or other individuals.
1. In accordance with part two of Article 19 of the Constitution of Ukraine, public authorities, including the courts of general jurisdiction, their officials “are obliged to act only on the basis, within the powers and in the manner provided for by the Constitution and laws of Ukraine”. In turn, “the judicial system, the status of judges; basis of forensic expertise …”, according to clause 14 of part 1 of Article 92 of the Basic Law, are determined exclusively by the laws of Ukraine.
2. The Institute for Reviewing Forensic Expert Conclusions is regulated in the Procedure of reviewing the conclusions of forensic experts and conclusions of expert studies approved by the Order of the Ministry of Justice of Ukraine No. 775/5 dated May 25, 2015 (hereinafter – the Procedure). The purpose of reviewing the conclusions of forensic experts, according to paragraph 2 of the Procedure, is “to improve the professional skills of experts, improve the quality and validity of their conclusions.” In accordance with clause 5 of the Procedure, “the review contains a detailed description of the conclusion from the point of view of its compliance with the requirements of the legislation on forensic expertise and the application of methods and techniques for conducting forensic examinations”.
3. The Procedure discretely determines: the grounds for conducting a review; objects of review; requirements for qualifications and experience of experts, who are making a review; the authority of the head of the scientific and research institution of forensic expertise in which the review is conducted; timing of a peer review; the form of compilation, approval and processing of the review; the order of their registration and storage.
4. The Procedure in paragraph 3 establishes exhaustive grounds for reviewing the conclusions of forensic experts and conclusions of expert studies: “1) the plan of reviewing the conclusions of forensic experts of scientific research institutions of forensic expertise of the Ministry of Justice of Ukraine; 2) the schedule of planned inspections of the organization of the activity of forensic experts who are not employees of state specialized institutions; 3) the contract or the training plan (internship) of a specialist who intends to obtain (confirm) the qualifications of a forensic expert; 4) an instruction of the Ministry of Justice of Ukraine on the conclusions drawn up by forensic experts who are not employees of state specialized institutions.” At the same time, the review of the conclusions drawn up by the forensic experts of scientific research institutions of forensic expertise is conducted on the initiative of the head of the institution in the exercise of organizational and control functions.
5. Reviewing the conclusions of forensic experts and conclusions of expert studies has a clearly defined subject. According to clause 7 of the Procedure there is the following statement: “The reviewer’s analysis shall be subject to an introductory, research and final part of the conclusion.” Thus, the subject of the review is the already existing conclusion of the forensic expert and the conclusion of an expert study. The reviewer has no right to get acquainted with the case materials, including objects of intellectual property, which were investigated by a forensic expert. A review of the conclusion of a forensic expert cannot be an alternative conclusion to an already existing conclusion of a forensic expert.
6. A review of the conclusions of forensic experts and conclusions of expert studies is carried out by a specially authorized entity: an employee of scientific research institutions of forensic expertise, who has the qualifications of a forensic expert from that expert specialty for which a conclusion has been drawn up for review, and at least 3 years of expert’s experience.
7. The forensic expert community respects the right of every person to “protect any rights and freedoms from violations and unlawful attacks” guaranteed by part five of Article 55 of the Constitution of Ukraine by any means not prohibited by law.
Summarizing, we consider the widespread practice of providing “reviews of the conclusions of forensic experts” conducted by forensic experts who are not employees of state specialized institutions or other individuals such as are contrary to the Constitution and laws of Ukraine, violate the ethics of forensic expert activity in Ukraine.
With a view to terminate the above-mentioned practice of “reviewing the conclusions of forensic experts”, the Section shall make a petition the leadership of the Ministry of Justice of Ukraine to apply to the Plenum of the updated Supreme Court of Ukraine on the basis of paragraph 4 of part two of Article 46 of the Law of Ukraine “On Judicial System and Status of Judges” with the aim to give the conclusion the status of “reviews of the conclusions of forensic experts” conducted by forensic experts who are not employees of state specialized institutions or other individuals in proceedings.
