SPECIAL PART
SECTION SEVEN
PRE-TRIAL CONDUCT OF THE PROSECUTION
Chapter XXXV
EXPERT OPINIONS
Article 264. Principles governing expert opinions
264.1. An expert opinion shall be obtained in order to determine facts of significance to the prosecution which require specialist knowledge of science, technology or the arts or of investigative methods.
264.2. The fact that the preliminary investigator, investigator, prosecutor in charge of the procedural aspects of the investigation, specialist or other participants in the criminal proceedings possess specialist knowledge shall not exempt the prosecuting authorities from their obligation to obtain an expert opinion in appropriate cases. To determine the facts provided for in Article 140.0.1-140.0.4 of this Code, it shall be obligatory to seek the relevant expert opinion.
264.3. An expert opinion shall be obtained by decision of the investigator or, in the case of a private prosecution, on a written application by the defence. A decision to obtain an expert opinion shall be binding on the people to whom it relates.
264.4. The decision to obtain an expert opinion shall contain the following :
264.4.1. the date, time and place of the decision :
264.4.2. the investigator’s family name, first name, father’s name and title ;
264.4.3. the objective grounds and reasons for obtaining an expert opinion ;
264.4.4. the material evidence and other objects sent for expert examination, specifying the place, time and circumstances of their discovery and removal and, if the expert opinion is based on evidence in the case file, the information on which the expert is to base his conclusions ;
264.4.5. the questions put to the expert ;
264.4.6. the name of the expert body or the family name of the person from whom the expert opinion was commissioned.
264.5. In the event of a private prosecution, in order to determine facts which may serve the interests of the defence, defence counsel shall, on his own initiative, have the right to officially commission one or more experts or expert bodies to prepare an expert report, on condition that the work is paid for on the basis of a contract.
265.6. In the event of a private prosecution, where an expert report is commissioned on the initiative of the defence and at its expense, the expert shall be given a list of questions and the items to be examined.
264.7. In the event of a private prosecution, the opinions of experts who issued an expert report officially commissioned by the defence shall be included in the case file by the court and assessed together with the other evidence.
Article 265. Individual experts' reports and reports prepared by committees of experts
265.1. An expert report may be prepared by one or more persons appointed as experts who have specialist knowledge.
265.2. An individual expert's report shall be commissioned from a recognised expert or the head of an expert body that will appoint a recognised expert.
265.3. An expert report on a complex subject or a repeat expert report shall be prepared by a committee of experts with the same specialisation. At the request of the parties, their chosen experts may be included in the committee of experts. The experts shall consult among themselves and, on reaching a consensus, issue and sign their opinion. If there is a difference of opinion among the experts, each of them shall give his opinion on the question or questions giving rise to the difference.
265.4. Execution of a decision to commission an expert's report shall be binding on the head of an expert body. Where preparation of an expert report is entrusted to an expert body, the head of that body may set up a committee of experts to prepare the expert report.
Article 266. Complex expert reports
266.1. A complex expert report shall be obtained where facts of significance to the prosecution can be determined only by conducting several studies in different specialist fields of knowledge or different branches of the same field of knowledge.
266.2. Within the limits of their authority and on the basis of all the factual information established as part of the complex expert report, the experts shall state their conclusions as to the facts to be determined with the aid of the expert report.
266.3. An expert may not sign the part of the complex expert opinion that deals with matters beyond his authority.
266.4. If preparation of the complex expert report is entrusted to an expert body, responsibility for organising the relevant expert studies shall lie with the head of that body.
Article 267. Additional and repeat expert reports
267.1. If the expert fails to answer the questions put to him completely or if the investigator has additional questions on the items investigated, an additional expert report shall be commissioned from the same or another expert.
267.2. If the expert’s opinion is not sufficiently reasoned or gives rise to doubts, if the evidence on which it is based is considered unreliable or if the rules of procedure governing preparation of an expert report are violated, a repeat expert report shall be commissioned.
267.3. A repeat expert report shall be commissioned from another expert. Experts involved in preparing the previous expert report may participate in and give explanations concerning the preparation of the repeat expert report, but shall not participate in the investigation or in drawing up the opinion.
267.4. Reasons for disagreement with the results of the previous expert report shall be given in the decision to commission the repeat expert report. When the repeat expert report is commissioned, questions may be put to the expert concerning the scientific basis of the means of investigation used to prepare the previous report.
Article 268. Rights of the suspect or accused with regard to the commissioning and preparation of an expert report
268.1. Where an expert report is commissioned and drawn up by decision of the investigator, the suspect or the accused shall have the following rights :
268.1.1. to be acquainted with the investigator’s decision to appoint an expert, before the preparation of the expert report, and to be given an explanation of his related rights ;
268.1.2. to object to the expert ;
268.1.3. to request the appointment of an expert from a list of persons he provides ;
268.1.4. to commission an alternative expert report on his own initiative and at his expense and to request the inclusion of this opinion in the case file ;
268.1.5. to put additional questions to the expert appointed by the investigator ;
268.1.6. with the investigator’s permission, to participate in the preparation of the expert report, to ask the expert to explain the nature of the investigative methods used and the results obtained, and to give explanations to the expert ;
268.1.7. to acquaint himself with the expert's opinion within 10 (ten) days of its receipt by the investigator and to request the preparation of an additional or repeat expert report ;
268.1.8. to participate in the questioning of the expert conducted at his request.
268.2. The rights listed shall also apply to persons to whom compulsory medical measure are applied, where their mental condition so permits.
Article 269. Preparation of an expert report by an expert body
269.1. The investigator shall send the decision to commission an expert report, items to be examined and, where necessary, the case file to the head of the expert body for an opinion. The expert report shall be prepared by an employee of the expert body. If the decision does not state by whom the expert report is to be prepared, the head of the expert body shall designate one or more experts belonging to that body and inform the person who commissioned the expert report.
269.2. Where an expert report is prepared on the initiative and at the expense of the defence, the latter shall send a list of questions and the items for examination to the head of the expert body.
269.3. The head of the expert body shall fulfil the following duties :
269.3.1. explain to the expert his rights and duties under Article 97.4 and 97.6 of this Code ;
269.3.2. inform the expert of the criminal responsibility incurred for intentionally giving false opinions and make a note to this effect in the decision on the appointment of the expert, requiring the expert to sign the decision as confirmation of receipt of this warning ;
269.3.3. make arrangements for the preparation of the expert report ;
269.3.4. provide secure means for the safe-keeping of items to be examined ;
269.3.5. determine the time limit for submission of the expert report.
269.4. The head of the expert body shall not have the right to give advance instructions to the expert on the conduct of his investigation and the results expected of it.
Article 270. Preparation of an expert report not entrusted to an expert body
270.1. Where an expert report is prepared otherwise than by an expert body, the investigator shall proceed as follows after making the decision to commission an expert report :
270.1.1. summon the person commissioned to prepare the expert report ;
270.1.2. ascertain his identity and authority ;
270.1.3. determine the expert’s relations with the suspect or the accused, the victim and any other participants in the criminal proceedings and verify whether there are grounds for an objection to the expert ;
270.1.4. present the decision to commission the expert report to the expert ;
270.1.5. explain to the expert his rights and duties under Article 97.4 and 97.6 of this Code ;
270.1.6. inform the expert of the criminal responsibility incurred for intentionally giving false opinions;
270.1.7. note the requests and wishes of the expert ;
270.1.8. note in the record that the expert has been acquainted with the decision to commission an expert report and that the procedures provided for in Article 270.1.2-270.1.7 of this Code have been carried out ;
270.1.9. issue a reasoned decision about satisfaction or refusal of the expert's wishes.
270.2. Where it is necessary to examine the physical or mental condition of the suspect, the accused, the victim or a witness, or where their participation in the preparation of the expert report is considered necessary, the investigator shall arrange for them to be brought before the expert.
270.3.If the expert report is prepared on the initiative of the defence and at its expense, a contract shall be signed between the expert and the defence. The defence shall pay for the expert report and give a list of questions and the items for examination to the expert.
Article 271. The expert opinion
271.1. No later than one month after the receipt of the investigator’s decision to commission an expert report or the conclusion of the contract between the expert and the defence, the expert shall carry out the necessary investigations, draw up a written opinion, confirm it with his signature and send it immediately to the person who commissioned the expert report or the defence.
271.2. The following information shall be given in the expert opinion :
271.2.1. the date, time and place of preparation of the expert report ;
271.2.2. the expert’s family name, first name, father’s name, education, specialisation, the length of time for which he has been working on the specialist subject, his scientific titles and degrees and his position ;
271.2.3. a note confirming that the expert is aware of the criminal responsibility incurred for intentionally giving false opinions ;
271.2.4. the grounds for preparing the expert report :
271.2.5. a note about those who participated in the preparation of the expert report (family names, first names, father’s names and home addresses) ;
271.2.6. a note about the circumstances in which the expert report was prepared, including material from the case file used by the expert, material evidence, samples and other items examined, methods applied and their degree of reliability, reasoned answers to the questions put and the facts of significance to the criminal case determined on the expert’s initiative.
271.3. The material evidence, samples, other materials and photos, drawings or tables which confirm the expert’s conclusions shall be attached to the expert opinion.
271.4. Where it is found that the material presented for examination is insufficient or the expert does not have sufficient knowledge, the expert opinion shall include information on the reasons why the expert is unable to answer all or some of the questions put to him.
271.5. The expert opinion shall be signed by the persons who prepared the expert report (the validity of these signatures shall be confirmed by the head of the expert body).
Article 272. Questioning of the expert
272.1. If the expert opinion is not sufficiently clear, if there are gaps which do not necessitate additional investigation or if it is necessary to clarify the methods applied or the terms used by the expert, the investigator shall be entitled to question the expert.
272.2. The expert shall be summoned and questioned in accordance with Articles 226, 227 and 230 of this Code.
272.3. It shall not be permissible to question the expert before he submits his opinion.
Other forms of cooperation
Cooperation under procedures of national law
National procedures for execution of requests for other forms of cooperation
Questioning of persons - national proceedings
EDIT.