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Interview with Nataliia Nestor, Deputy Director of Kyiv Scientific Research Institute of Forensic Expertise to the “Legal Bulletin of Ukraine”: “Forensic examination is a requirement of a civilized judicial proceeding”

At the request of the national legal newspaper “Legal Bulletin of Ukraine” Nataliia Nestor, Deputy Director of Kyiv Scientific Research Institute of Forensic Expertise, talked with Viktor Kovalskyi, Editor-in-chief of the publication and spoke about current issues of the forensic examination of Ukraine.

Publication text:

“A priori, it is known that the expert’s research is based on the discovery of specific knowledge about objects, phenomena, certain processes, and individual procedures. They are investigated in the context of the factual circumstances of the case, which is in the proceedings of the authorized bodies. Moreover, it was believed that this is the “queen of evidence”, because it acquires convincing significance for the existence of an objective state of things. Although in its essence forensic examination is only one of the varieties of examination, it takes place as a special study. And in fact, forensic expertise turns into an indirect means of proof. In that, the appointment of the examination turned into an important procedure. Although evaluating the results of an examination is a more important, sometimes painful procedure, not only for a person authorized by a procedural law person. There are many types of examinations. We are primarily interested in its mandatory appointment in the criminal, civil, economic, administrative process, in cases of administrative offenses, as well as in enforcement proceedings.

Recently, in the case of the mayor of Odesa, Hennadii Trukhanov, the court declared a series of evidence unacceptable, in particular, an examination of the cost of the building, for which the Odesa City Council, according to investigators, paid twice as much. According to lawyers, the experts collected evidence, it is generally forbidden for the expert to do it, and the inspection of the scene was made with a significant violation, because the examination itself is already a derivative of this procedural action. The defense argues that it is impossible to determine market value in an unstable market and there is no methodological basis for experts to determine market value. In addition, the defense considers that it was necessary to conduct a forensic economic examination, which determines an adequate amount of the damage inflicted, which is indicated in the case materials on the construction-technical and appraisal-construction examination. Investigators of the Specialized Anti-Corruption Prosecutor’s Office consider the examination of value to be extremely important evidence for the case, which the court cannot but take into account. Today, Nataliia Nestor, Candidate of Juridical Sciences, Deputy Director of Kyiv Scientific Research Institute of Forensic Expertise is our interviewee of these important issues.

Most recently, the celebration of the Day of the forensic expert took place, with which the editors congratulate the entire community of forensic experts, make up a considerable team of highly educated people. Let’s start right away on the issue that concerns everyone now. Is the court rejecting the examination results in the case of Hennadii Trukhanov is this normal case or an extraordinary event, in your opinion?

I can’t call it either one or the other. The work of experts is not in assessment, but in research, analysis, in the formation of objective conclusions. In general, the assessment activity is not typical for an expert in accordance with applicable laws and regulations. An expert’s opinion is evaluated according to the general rules for evaluating evidence, and no evidence, including an expert’s opinion, has a pre-established force. Our institute conducted a forensic examination and I can assure that it is reasonable, correct, and complies with all the norms of the current legislation, as well as that it was conducted by qualified forensic experts, experts in their field. However, in this case there is also an appeal and cassation instance that can change the decision of the court of first instance or upheld it, time will show this for us.

Participants of the trial are accustomed to weighing on the results of the examination, but only the court has the right to evaluate or interpret them, am I right?

Yes, the court has such competence. But I must remind the requirements of Article 94 of the Criminal Procedure Code of Ukraine, which states that the investigator, prosecutor, investigator judge, court of their own conviction, which is based on a comprehensive, complete and impartial study of all the circumstances of the criminal proceedings, guided by law, evaluate each evidence in terms of relevance, admissibility , reliability, and the totality of the evidence collected – from the point of view of sufficiency and interconnection for making an appropriate procedural decision. And not a single argument has a pre-established force. And that’s that.

The number of types of forensic examinations is constantly changing. And how many types of examinations in general can Kyiv Scientific Research Institute of Forensic Expertise conduct?

Our institute conducts 96 types of examinations. Among them are military, biological weapons examination, trasological, explosive-technical, economic, ecological, fire-technical, computer-technical, commodity, etc. This is a huge arsenal of special knowledge, research technologies, human experience and professionalism of our experts.

Which forensic examinations are the most expensive and what do you think are the most important?

It all depends on the number of hours spent by experts for conducting a forensic examination or expert study. If the examination includes many objects of research, for example, then the expert hour is spent more, respectively, and the cost rises in price.

In accordance with the Order of the Ministry of Justice of Ukraine, the cost of one expert-hour in 2019 is 157 UAH.

With regard to the most necessary, all types of expertise are necessary, as only the experts have the specialist knowledge to resolve certain issues that are the subject of examinations.

There are a number of expert institutions in the state, including private ones. Is there a competition between institutions or is everything decided, so to say, by law?

In accordance with Article 7 of the Law of Ukraine “On Forensic Expertise”, forensic activities in criminal proceedings are carried out by state specialized institutions, and in other cases also by forensic experts who are not employees of these institutions and other specialists (experts) in the relevant fields of knowledge.

The main point that I would prefer to draw the reader’s attention to is the competence of the expert, his special knowledge, because forensic examination is the study of material objects, phenomena, processes by an expert based on special knowledge. That is, a person must have an appropriate level of qualification and competence in order to be a forensic expert and provide an expert opinion.

Speaking about competition, I would like to emphasize, however, that both forensic experts of state specialized institutions and private experts should first of all think not about competition, but about the qualification of their opinion, the legal norms should be observed, and work together to ensure fair justice in Ukraine, improved norms of the current legislation, expanded rights and guarantees of experts.

It is possible for someone to ignite enmity and competition between private experts and experts from state specialized institutions, but I would encourage the above-mentioned experts to work together, because there is enough work for everyone.

Although sometimes there are cases of opposing conclusions of a private expert and an expert of a state specialized institution, however, the court, as an arbitrator, makes its decision, taking into account the relevant opinion or rejecting it.

KFI is a leading scientific and expert institution that conducts both scientific and expert research, including with foreign partners. How do you get in touch with European partners, please tell us?

In this sense, we have accumulated vast experience and we are constantly expanding international relations. In 2017, KFI has become the first institution in the system of the Ministry of Justice of Ukraine to become a member of the European Network of Forensic Science Institutes (ENFSI), we are members of European working groups on various types of examinations. KFI constantly takes part in international conferences, round tables, exchange of experience programs, for example, in 2018 our institution was the only representative from Ukraine at the forensic-practical conference of criminologists, which takes place every 3 years and gathers specialists from all over the world. In 2019 KFI became the first and only non-police institution within the framework of CEPOL Exchange Program. We also cooperate with a number of other international organizations, institutions. I am very proud of the high qualifications of our experts, and the fact that we have something to share with colleagues from other countries, and it is pleasant to surprise them with our innovations in research.

In any case, expert staff is the professional foundation of an important institution. Please, tell us about the real composition of the staff, about its achievements and, perhaps, what you can’t achieve?

When I came to KFI I became convinced of Confucius, who said: “Choose a profession you love and you will not have to work a day in your life.” KFI’s experts are high-skilled specialists, despite the fact that experts from different professions work at the institute, but we are united by forensic expertise.

The biggest achievement of our institute is the people who work here. Employees undergo internships, training; participate in seminars, trainings, constantly improving themselves. Without this, in the current conditions it is simply impossible to work.

Our professional team of experts is intellectual capital, which we try to maintain and strengthen. The institute employs about 400 people, including candidates of science, doctors of science, but a significant indicator is the qualification of an expert, that is to say, professional status.

Speaking about the achievements of the Institute, it is necessary to say about the technical capabilities, thanks to the initiative of our Director, new, modern equipment for examinations was purchased as well.

Saying, however, so far what has not been achieved, it is a decent salary for forensic experts, although the increase in salaries has occurred in the judicial sphere, law enforcement, etc., today it averages about nine thousand UAH per month, although the Article 18 of the Law of Ukraine “On Forensic Expertise” provides that official salaries should be at least 10 times the subsistence level, but it has been suspended for 2 years by the Verkhovna Rada of Ukraine.

Frankly speaking, we have additional payments for knowledge of a foreign language, scientific degree and bonuses.

Does the procedure for conducting examinations in various types of litigation differ significantly in terms of technology?

Different types of litigation have their own specifics of appointing and conducting examinations, which are determined by the Law of Ukraine “On Forensic Expertise” and the procedural codes of Ukraine.

In general, common features can be distinguished, for example, requirements for an expert, because in any case, an expert gives an opinion on his/her behalf and is responsible for it. It must also ensure the preservation of the object of examination. If the examination is associated with the complete or partial destruction of the object of examination or a change in its properties, then the expert must obtain the appropriate permission for it, etc.

And the last question to you, how do you see the future of the institute?

As they say, it is necessary to take the future very seriously, because it is in it that we spend the rest of our lives. Among the strategic goals is to increase the level of remuneration for experts, the development of science, international cooperation, the acquisition of new equipment, and the expansion of the institute’s service areas.

It is within my competence to develop the Institute as a research institution. Considering the achievements of such outstanding scientists who worked at KFI, for example V.K. Lysychenko, V.H. Honcharenko, M.Ya. Sehai and others, we can firmly say that we must continue the glorious traditions of our institution, and be a flagship in criminalistics and forensics.

And without pathos, I can say that Ukraine does not pay enough attention to the development of forensics. The number of hours in educational institutions in the relevant discipline is reduced. In recent years, only a few textbooks have been issued that require an early update. Professional training of judges, investigators, and prosecutors requires constant strengthening, because sometimes in the documents on the appointment of examinations you can find outright errors. And the institute in these conditions, like an icebreaker, paves its way in the ice, knowing what awaits us. And with our work we prove that we are going the right way. We hope that the coming years will become even more productive and eventful for the institute.

Thanks for the interesting and informative answers. The questions were asked by Viktor Kovalskyi”.

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