Political Points for 15 – 22 October 2018

Deputies may make the investigation of corruption crimes more complicated due to excessive control over forensic examinations

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1. CPLR expert opinion

On September 18, the Verkhovna Rada adopted in the first reading a draft law that could lead to ineffective investigation of corruption and corruption-related crimes due to creating the risks for expert examinations conduct within criminal proceedings. On October 18, the Verkhovna Rada Committee on Legislative Support of Law Enforcement Affairs reviewed this draft law before the second reading and partially took into account the necessary amendments. The CPLR experts prepared a conclusion on this draft law.

2. Respective authorities counter-point/argument

The authors of this draft law believe that its adoption will help restore the proper procedure for conducting forensic examinations, reduce the work burden on judges and speed up pre-trial investigations. The draft law proposes to introduce a state monopoly for conducting forensic examinations; to cancel the possibility of interrogating an expert as a witness by an investigator or prosecutor; to maintain judicial control over conducting some types of expertise, in particular, economic and commodity expertise, which are often appointed in the investigation of corruption crimes; to create a state register, which would contain information on all conducted judicial examinations.

3. CPLR assessment of the authorities counter-point

Creating a state monopoly for conducting forensic examinations significantly increases the burden on state specialized institutions and may adversely affect the timeliness of criminal proceedings, as well as creates opportunities for pressure on experts from these institutions.

Elimination of the possibility to interrogate an expert as a witness at the stage of pre-trial investigation deprives the investigator and the prosecutor of a chance to make preliminary assessment of the credibility of the expert’s findings based on personal judgements, and also reduces the possibility of clarifying the expert’s position on the conclusions drawn, better understanding of the content of the conclusions. The proposed alternative – written explanations of the expert’s conclusion – is not an equivalent substitute and may lead to cases of experts’ manipulation with statements in the conclusion, correction of their previous statements in favor of one of the parties to the criminal proceedings.

Maintenance of judicial control over the conduct of certain types of expertise is also unjustified, since it is unclear what is a significant difference between economic or commodity expertise and, for example, computer and technical expertise, so that it is subject to judicial control. Establishing this control can lead to premature disclosure of the pre-trial investigation information and will negatively affect the completeness and effectiveness of the investigations.

Creating a Unified State Register of Forensic Expertise and Expert Examinations can also lead to the disclosure of information of a pre-trial investigation, as well as creates additional possibilities for pressure on experts to change their conclusions, in particular, through the full or partial change of the positions in the written explanations of the expert’s conclusion.

4. Related legislation/instructions which require the authorities act in a certain manner

Aricle. 2, article 69, part 2 of Article 84, articles 101-102 of the Criminal Procedural Code of Ukraine.

5. CPLR expert suggestions on how to fix the problem using the legal instruments available in Ukraine

Provisions of the draft law create preconditions for the inefficiency of the pre-trial investigation of corruption and corruption-related crimes, therefore, certain provisions of this draft law should be brought in line with international standards and requirements of Art. 2 of the CPC to ensure the fulfilment of the tasks of criminal proceedings.

Proposed rules on the introduction of judicial control over certain categories of expert examinations, which are common in the investigation of corruption and corruption-related crimes; establishment of a Unified State Register of Forensic Expertise and Expert Examinations; introduction of a state monopoly for conducting forensic examinations, should be considered as increasing the risk of pressure on an expert and contrary to the general principles of criminal proceedings, and that is why they should not be adopted.

It is recommended to finalize the draft law before its adoption in the second reading, and if the above comments will be ignored, the draft should be rejected.