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9JURIDICAL SCIENCES
ASSESSMENT OF EXPERT OPINION ON STUDY OF MICRO-OBJECTS
Javadova A.
Senior expert, Department of physical and chemical Forensic Sciences Centre the Ministry of Justice of the
Azerbaijan Republic DOI: 10.5281/zenodo.6532833
ABSTRACT
One of the most important means of cognition in criminal proceedings is criminal-procedural evidence, this is carried out with help of special means in the procedural forms provided by law and by the authorized subjects
As it is known, evidence about the identity of the offender, the instrument of the crime, the place and circumstances of the crime, the method of committing the crime, etc. can be obtained through the results of the forensic study of micro-objects
Micro-objects taken from the crime scene are the carriers of the evidence which contributes to conducting successful investigation and disclosure of crimes such as intentional homicide, assault, grievous bodily harm, theft, etc.
Simultaneously, the forensic literature on forensic examination of micro-objects is mainly devoted to the development of the methodological foundations and methodology of such kind of forensic studies. Practically, the issues of evaluating expert opinions on a comprehensive scientific study of the technology of the process of using micro-objects as a source of evidence, the study of micro-objects have almost not been considered in the special literature. With this respect, the scientific study of the peculiarities of evaluating the conclusions from experts on the study of micro-objects by the inspector and the court is of particular relevance, as well as scientific and practical significance.
Keywords: physical evidence, expert opinion, micro-objects.
One of the most difficult stages of the evidence process is the evaluation of the evidence. Evaluation of evidence is one of the necessary stipulations for the expedient conduct of an investigation and court proceedings, the adoption of a legal and valid procedural decisions, and the proper application of the law. In the context where serious changes have taken place in the situation, structure and dynamics of crime, the most dangerous types of crime emerged and developed , the class of professional criminals have formed and the absence of visible traces when they commit crimes, no traditional traces at the scene of the crime, the role and importance of expert opinions as a type of evidence obtained as a result of a special study of micro objects, including micro particles of fibrous materials, that left at the crime scene, as a source of information of forensic importance in the discovery of crimes and preliminary investigation of crimes, in court has increased significantly.
As micro objects and micro particles (glass, metal, ceramic fragments, paint and varnish particles, soil, river sand, human hair, plant and synthetic fibers, various dust micro particles, etc.) act as sources of evidentiary information in the investigation of a number of crimes, especially intentional homicide, rape, theft and other criminal acts, it is possible to obtain factual information - evidentiary information by conducting special research in applying appropriate research methods and techniques, modern technology and technical means, to disclosure of criminals by reflecting the results of research in an expert opinion that considered procedural document and to significantly assist to the judicial-investigative bodies in the investigation
Y.V. Jhdanova notes that the subject of proof is a mental activity based on the internal beliefs in order to
determine the assessment of the evidences, including expert opinion, as well as the relevance, feasibility and validity of the information on individual cases of the criminal case. [l]
T.I. Aliyeva notes that "the expert's opinion should be verified and evaluated in accordance with the Code of Criminal Procedure. The verification and evaluation of the expert opinion determines whether the expert opinion is accepted as evidence and its validity". [2]
N.V. Savelyeva notes that the expert opinion should be evaluated as other evidence in terms of feasibility, relevance and validity, and for this it is necessary to evaluate the form and content of the opinion. [3]
A.N. Petrukhina states that expert opinion is one of the types of evidence and, as a general rule, should be evaluated in terms of relevance, feasibility and reliability. Simultaneously, the author also distinguishes another feature of the evidence - their substantiating significance. [4]
The criteria for evaluating evidence are also specifically mentioned in the Procedural legislation. For example, Article 145.1 of the Code of Criminal Procedure of the Republic of Azerbaijan states: "Each piece of evidence must be evaluated on the basis of relation, feasibility and reliability. All the evidence collected in the criminal prosecution must be assessed on the basis of their sufficiency to resolve the charge.
It should be noted that a similar provision is provided for in the Code of Criminal Procedure of the Republic of Kazakhstan. According to Article 125.1 of the Criminal Procedure Code of the Republic of Kazakhstan of July 4, 2014, "each piece of evidence must be evaluated in terms of relevance, feasibility, reliability, and all collected evidence - in terms of sufficiency to
resolve the criminal case."
According to Article 125.5 of the Criminal Procedure Code of Kazakhstan, "during the inspection, the evidence that is true is considered reliable."
According to Article 127.3 of the Code of Criminal Procedure of the Republic of Azerbaijan, "an expert's opinion is not binding on the investigator, prosecutor or court, but it must be verified by the prosecuting authority as any other evidence and evaluated in all circumstances of the case."
N.S. Neretina rightly points out that in practice, investigators and judges take a formal approach to the assessment of an expert opinion, by focusing on the expert's findings, mainly assess the completeness of the opinion, checking whether the expert answered all questions and whether his answers were definite or probable. [5]
K.G. Sarijalinskaya writes: "One of the main conditions for using an expert opinion as a source of evidence is its correct assessment. Like other evidence gathered in a criminal case, the expert's opinion is easily evaluated by the investigator, the prosecutor and the court. By guiding the requirements of the law, the person evaluating the expert's opinion shall act through his / her inner conviction based on a thorough, complete and objective consideration of all cases. The expert opinion is not binding on the investigating authorities. [6]
Pursuant to the Law of the Republic of Azerbaijan on forensic examination, the expert's opinion should be based on provisions that allow verifying the validity and reliability of the conclusions achieved in the commonly-accepted scientific and practical database. This provision is of particular importance for the study of micro- objects.
Evaluating an expert opinion based on the results of a forensic examination of micro particles of fibrous materials is a complex process, as it is the result of an expert study conducted using special knowledge. Therefore, other participants involved in the process cannot adequately assess the opinion at all times, since they do not possess such knowledge.
- E. R. Rossinskaya defined the successive stages of the expert opinion evaluation process as follows:
- verification of compliance with the requirements of procedural law during the appointment of forensic examination;
- verification of the suitability and adequacy of the studied material evidence and samples;
- Assessment of the scientific validity of the expert methodology and the legitimacy of its application in a particular case;
- Verification and evaluation of the completeness and comprehensiveness of the opinion;
- Verification the progress of the expert study and the logical validity of the results;
- Verification the compliance of the results of the examination with the criminal case under investigation;
- Verification of the compliance of the expert's conclusions with other evidence in the case. [7]
In terms of content, the main criteria for evaluating expert opinions on the study of micro-objects are:
Scientific validity of the methods and technical means applied in the experiment; legality and feasibility of the applied methods and means of study; the property and effectiveness of the application of methods and means of research; logic and sequence of expert study; accuracy and relevance of the intermediate and final results of the study; completeness and comprehensiveness of the study.
As noted, any evidence, including expert opinions, should be evaluated for relevance, certainty and reliability.
N.V. Savelyeva writes that the formal assessment of the opinion is determined by the relevance and possibility of the expert opinion and it depends on the observance of examination appointment to the procedural rules, the relevance and probability of the objects presented to the disposal of expert, the correct and accurate submission of the questions to the expert, the compliance of the facts established by the expert on the basis of expert initiative, compliance of the expert opinion form with the requirements established by the procedural legislation [8].
Feasibility means that the characteristics of methods of obtaining, study, procedural compilation of factual information established by the criminal procedure legislation which allow to include the collected evidence in the system of criminal proceedings, to determine the facts of the criminal case and to use them to determine whether a person is guilty or not.
It creates more difficulties to determine the validity of opinion during the evaluation of the expert's opinion based on the results of the examination proceedings of micro particles of fibrous materials, as such an evaluation involves study and verification the content of the opinion.
I.A. Grigoriev notes that currently the criteria for reliability in the accurate interpretation and application of the results of forensic activities have not been fully developed. The author states that the individual criteria of reliability are procedurally expressed by criteria such as "compliance", "possibility", "validity", "comprehensiveness", "completeness", "objectivity", "adequacy", "accuracy".[9 ]
Determining the reliability of an expert's opinion in criminal proceedings is a complex cognitive activity that involves both study and evaluation of such evidence. [10]
Evaluation of reliability of opinion includes the scientific validity of the applied methods, means and research methodology; the correctness and legality of the use of these methods; completeness and comprehensiveness of the conducted study; verification the correctness of the signs uncover by the expert and as the result - the scientific validity of the results of examination study [11].
By emphasizing that the assessment of the relevance of the expert opinion, amongst others, is related to the problem in assessment of the possibility of applied methods and methodology of expert in the course of study, F.M. Javadov states: « "The main point in determining the feasibility of a method in expert research is its scientific substantiation, its scientificity. In this
case, the scientific nature of the method should be understood as its substantiation by the latest achievements in this field of knowledge. The feasibility of an expert method of examination method is determined not only by its scientific validity, but also by the feature of its impact on the object. For example, safety (harmless-ness) (preservation of the object in the appearance and condition in which it is included in the study) within such a condition may include. From this point, it comes clear that it is possible to apply only non-destructive research methods. It is possible that other requirements may be set against the method: the obviousness of the results achieved with its help to the participants of the process, the possibility of admission, the opportunities of their verification in a given situation, etc. [12]
In a number of western countries, reliability is assessed on a variety of grounds. For example, in French criminal proceedings, the reliability of the examination results is assessed in terms of the expert's personal qualities (research skills, understanding of his/her role in the process, professional impartiality, authority) and the validity of the methods used. In assessing the reliability of an expert opinion in a German court in criminal proceedings, the factual grounds, methods and content of the expert opinion should be examined, the compliance of opinion with the standards approved in the relevant field of knowledge and described in the specialized literature, and it also requires an assessment in terms of style and the logical validity of the research [13]
One of the most important structural elements in assessing the reliability of expert opinions on the study of micro-objects is the assessment of the reliability of expert methods and techniques.
We consider that the certification of expert methods, the establishment of a fund of forensic methods will greatly facilitate the assessment of the methodological scientific validity of expert opinions, the reliability from scientific and methodological aspects.
Referring to the issue of certification of forensic methods, H.A. Musayev states: "Improvement of methodological support, which is one of the most important components of information-analytical support of forensic activities, is related to the certification, establishment of catalogs, computerization of expert methods and certification of methodological support." [14]
It should be noted that the necessity and importance of certification on expert methods, the establishment of a methodological fund for each type of examination has long been noted in the special literature
In connection with this necessity, new items for which provisions are established related to the establishment of methodological fund on conducting expert study and register of expert proceedings methods were included in the amendment and annex made by the Law of the Republic of Azerbaijan dated 29 November to the Law on Forensic Examination.
Thus, according to Article 11-4 of the Law on Forensic Activity (State Register of Forensic Research Methods), during forensic examination experts use research methods included in the State Register of Forensic Research Methods. An expert may use a method that
is not included in the State Register of Forensic Research Methods only if it is substantiated in the expert opinion that the method meets all of the following conditions: 1) does not contradict the norms and principles provided by law; 2) scientifically substantiated; 3) safe for human life, health and environment.
In accordance with Article 11-5 of the Law, entitled "Methodological Fund of Forensic Examination", a special fund consisting of scientific and methodological materials of forensic examinations is established. Electronic copies of these materials are included in the fund.
In modern conditions where acceleration of globalization and the scientific and technological progress, as well as the emergence of new forms and types of criminal activity with high social danger, one of the actual problems of forensic theory and practice is to unify the methodology of forensic science activity, develop the scientific and methodological basis of forensic proceedings, to establish a modern methodological framework that fully meets the requirements of the practice of crime prevention.
In our opinion, the expediency of the choice of this or that special method by the expert is determined by: the scientific validity of the method within the framework of the relevant fundamental scientific and general theory of forensic science; the amount of information that can be obtained using this method; specific court -the degree of compliance with the specific requirements for expert research methods; incurred time, material and labor, etc. associated with the application of the method.
One of the most complex and complicated issues facing the investigator and the expert in assessing of expert opinions on the study of small-objects is the assessment of the expert opinion in terms of scientific validity. Having regard this, H.A. Musayev notes: "The expert opinion is considered valid if it contains convincing facts and evidence confirming the results of the study. Generally, it would be more accurate to talk about the scientific validity of the expert opinion, rather than the general validity of it. The scientific validity of the expert opinion means that the examination was conducted on a scientific basis, in accordance with modern capabilities and approved research methods. [15]
We consider that acquaintance with special scientific literature and research methods, expert advice, expert interrogation, peer review of expert opinion, all of these in general helps to clarify the scientific validity of expert opinions reflecting the results of research of small - objects.
As a result, having regard the above, the investigator or judge should pay special attention to the following by taking into account other criteria while evaluating the expert opinion:
- Validation of methods used by the expert;
- certification of methods and techniques of forensic proceedings, whether they are included in the register of forensic methods and in the fund of methodologies (note that in the amendments made to the Law on Forensic Activities in 2019 were also considered expedient the inclusion of the methods used in the course of forensic examination in the register of forensic research
methods, establishment of the fund of expert research methods);
- Accreditation of a specific type of expert study as well as the methods and technology, algorithms used in this case that approved by an international expert organization;
- Indicators related to the calibration of devices and equipment, units, other technical means used in the course of expert examination, as well as, along with other areas, the purpose for their use in conducting research in the field of forensic examination;
References
1. Jhdanova Y.V. Problems of probable and reliable in criminally-remedial evidence and their influence on the adoption of individual procedural decisions by the investigator. Abstract of the dissertation for the degree of candidate of legal sciences. ijevsk, 2004, p.16
2. Commentary on the Code of Criminal Procedure of the Republic of Azerbaijan. J.H. Movsumov, B. J. Kerimov, A.H. Huseynov
3. Savelyeva N.V. Evaluation of the expert's opinion. Abstract of the dissertation for the degree of candidate of legal sciences. Krasnodar, 2007, p.6
4. Petrukhina A.N. The conclusion of the expert and his assessment in the criminal process. Abstract of the dissertation for the degree of candidate of legal sciences. M., 2012, p.4-5
5. Neretina N.S. Methodological, legal and organizational aspects of the formation and development of new genera and types of forensic examinations. Dissertation for the degree of candidate of legal sciences. M., 20156 p.140
6. Sarijalinskaya K.G, Javadov F.M, Mahmudov
A.M, Aliyev B.Y. Forensic examination. Textbook. Baku 2003, p.4-5
7. Rossinskaya E.R. Judicial examination in civil, arbitration, administrative and criminal proceedings. M., 2006, pp. 269-273.
8. Savelyeva N.V. Evaluation of the expert's opinion. Abstract of dissertation for the degree of candidate of legal sciences. Krasnodar, 2007, p.6-7
9. Grigoriev I. A. Reliability as a legal principle of forensic activity. Dissertation for the degree of candidate of legal sciences. M., 2020, p.4-5
10. Nemira S. B. Reliability of expert opinion in criminal proceedings. Dissertation for the degree of candidate of legal sciences. Krasnodar, 2016, p.9
11. Prokopenko N. A. Peculiarities of assessing the examination of micro-objects by the subjects of proof // Ambassador of the Taganrog Institute of Management and Economics. 2017. No. 2, p.59
12. Javadov F.M Special theory of forensic expert opinion, their current state and development trends / Actual issues of forensic examination, criminology and criminalistics; Baku 1999, p.9
13. Samuticheva E. Yu. Expert opinion and its assessment in criminal proceedings (comparative legal research). Dissertation for the degree of candidate of legal sciences. M., 2015, p. 123
14. Musayev. H. A. Non-traditional study methods in forensic proceedings (scientific - theoretical, organizational-methodological and legal aspects) Baku 2012, p.223
15. Musayev. H. Y. Some issues of forensic and judicial evaluation of forensic examination opinions, which involve the application of mathematical modeling. Study guide. Baku 1997, p.15
THE ROLE OF CRIMINAL PROCEDURE LEGISLATION IN THE EFFECTIVE FIGHT AGAINST
CRIME
Gadirov A.
Associate Professor of Law, Academy of Public Administration under the President of the Republic of Azerbaijan, Doctor of Philosophy in Law DOI: 10.5281/zenodo.6532837
ABSTRACT
The author of the article examined the role and importance of procedural regulation in the fight against crime. The article focuses on the analysis of the concept of crime itself in the fight against crime, and touches on the question of the appropriateness of the application of a number of procedural institutions in this fight. Along with punishment, the importance of coercive procedural measures, which are one of the main institutions of criminal procedure legislation, was noted in the fight against crime.
Keywords: crime, criminal procedure, coercive procedural measures, arrest, detention, hostage, criminal procedure legislation, restrictive measures.
In order to properly study the role and importance of procedural regulation in the effective fight against crime, it is first necessary to clarify the nature of crime and the fight against crime.
Crime is relatively massive, changing throughout history, criminal in nature, definiteis a negative social event characterized by quantitative and qualitative indicators, consisting of a set of crimes committed in the relevant state during the same period [9, p.25]. As crime is characterized as a negative social phenomenon for society, its expansion poses great obstacles to the
protection and enforcement of human rights and freedoms. Since Article 12 of the Constitution of the Republic of Azerbaijan states that ensuring human and civil rights and freedoms, a decent standard of living for the citizens of the Republic of Azerbaijan is the highest goal of the state, the state must fight crime and take effective measures to reduce it.
According to Chingiz Mustafayev, the effectiveness of crime prevention depends, first of all, on the correct identification of the causes and conditions that cause it. Prevention means the prevention of a social
