liability of non-state forensic expert

The legal basis of forensic activity in civil, administrative, arbitration and criminal proceedings on the territory of the Russian Federation, is the Constitution of the Russian Federation, the Federal Law of 31 May 2001 g. N 73-FZ "On state forensic activities in the Russian Federation Civil Procedure Code of the Russian Federation”, Code of Arbitration Procedure of the Russian Federation, Code of Criminal Procedure of the Russian Federation, Code of Administrative Offences of the Russian Federation, the Customs Code of the Russian Federation, the Tax Code of the Russian Federation, legislation of the Russian Federation on health care, other federal laws and regulations, legal acts of the federal executive bodies regulating the organization and the production of forensic expert.

Procedural responsibility imposed by the actions (or inaction) of the assessor, is based on his rights and obligations regulated in Article 17, p. 18 and Art. 41 of the Federal Law of 31 May 2001 g. N 73-FZ "On state forensic activities in the Russian Federation". A careful analysis of the law it becomes clear that almost all the major issues of expertise are regulated. Thus, objectives and principles of the state forensic activities and non-forensic activity are the same; rules of human rights and freedoms of man and citizen, as well as the rights of a legal entity in the implementation and the state and non-state forensic activity are uniformed; the principle of independence for the public and for non-governmental experts are the same; the provisions on objectivity, comprehensiveness and completeness of the studies are also common; rights and responsibilities of state and non-state expert are identical; rules of expert removal are similar, regardless of whether it is state or non-state expert; expert record state or non-state expert must meet the same criteria; and, finally, the right of presence of actors in the production of forensic and public forensic expertise in state expert institution and non-state expert institution are also the same. Thus, it is clear that the major issues of non-state forensic activities are regulated by law and by the same legal standards as the state forensic activities (Art. 41 number 73-FZ of 31.05.2001 "On state forensic activities in the Russian Federation"). Let us analyze further federal legislation in this regard. For procedural purposes, the legislator as an expert is determined by a person with expertise in the area of ongoing research, and appointed by the court to give a final conclusion. Thus, the procedural legislation also does not set any privileges for experts based on their belonging to non-state or state organizations. On the liability for knowingly giving false conclusion experts are warned as whether he is state or nonstate. All the above provisions confirm the minimization of statutory differences in the legal status of public and private expert. So far, for nongovernmental experts in the Federal Law of May 31, 2001 № 73-FZ "On state forensic activities in the Russian Federation" the question of professional and qualification requirements for experts remains unregulated (Article 13 of the FZ-№ 73 from 31.05.2001 g.). In accordance with the relevant procedural rules, each party, as well as all persons involved in the case, in one form or another, has the right to submit to the court their views on matters relating to the appointment of expertise, including the choice of an expert (the expert institution), whom the court will entrust its production. In other words, questions of qualification of the expert who has been called by the court to give an opinion, are to be discussed by the parties in the case and the persons participating in the proceedings. So, in the Arbitration Procedural Code of the Russian Federation, such provisions are contained in Article 82. At the same time, paragraph 3 of Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation of 20 December 2006 g. N 66 "On some issues of practical application of the law on arbitration courts of expertise" states that"... in the case of the examination by the expert organization in the private court information on education expert, specialty, work experience and position is clarified i.e. information regarding the qualifications and professional requirements for the expert. The civil procedural law on the issue addressed in judicial review the Application of legislation governing the appointment and examination in civil cases, approved by the Presidium of the Supreme Court 14.12.2011, stating that: "... Examination can be instructed forensic expert institution, specific expert or several experts. Persons involved in the case are entitled to propose specific candidates of experts or expert institutions, as well as to remove an expert (p. 1, 2, Art. 79 Civil Procedural Code of RF). In practice, there were cases of removal of experts. The courts satisfied petitions to remove an expert in the following cases:

• - competence of the proposed expert by one of the parties has not been confirmed;
• - before the petition to the court expert expressed his view on the same object of study ... ". Questions of professional qualification requirements for the expert, in the framework of the criminal procedure law are regulated in detail the Decree of the Plenum of the Supreme Court of the Russian Federation of 21 December 2010 "On legal expertise in criminal cases." Particular attention in this judgment is drawn to the questions posed by the expert and the opinion on them cannot go beyond his expertise. Statement of the expert on legal issues related to the assessment of an act, the resolution which falls within the exclusive competence of the authority conducting the investigation, the prosecutor, the court (for example, who was the culprit of the accident ...), if not within its competence, is not permitted. (Article 4 of the Decree). Thus, we conclude that at this point in the Russian Federation main provisions of the organization of activity of legal expertise, both state and non-state forensic experts are regulated. The questions of professional and qualification requirements for non-governmental experts, are given by the legislator to a discretion of persons (bodies) appointing forensic expertise with simultaneous discussion with interested persons.

The question of liability of forensic experts for misconduct in their professional activities the works of Russian scientists are devoted to: T.V. Averyanov, R.S. Belkin, A.M. Zinin, N.P. Mailis, J.K. Orlov, A.Y. Pali- ashvili, A.I. Petrukhina, I.L. Petrukhina, E.R. Rossinsky, S.G. Chaadaeva and others. The main element in legal liability of both state and non-state court expert is a factor of expert evaluation of decisions and actions in the course of an expert study on the stage of final results and the formation of expert conclusion, as expert largely determines the further course of the judicial proceedings. Expert has a legal (criminal, disciplinary) and the moral and ethical responsibility for the quality of his work to the person who appointed judicial examination, the court, the victim, the suspect (the accused), the head of the forensic institution. Criminal liability for the expert comes in the deliberate actions to the detriment of the truth in a criminal case; disciplinary - in violation of professional duties not giving rise to criminal liability, a moral responsibility begins for non-ethical norms of professional activity of a forensic expert. Ethical responsibility of a court expert is a form of external expression of the conscience of the court expert, which includes an analysis of his own behavior (behavior, relationships, etc.) and their relation with ethically possible. Depending on the specific circumstances of the case, the expert can be held criminally or administratively liable, as well as disciplinary liable in the event of his work under a labor contract.

Administrative liability of specific compositions of the Administrative Code does not contain, the likelihood of bringing forensic expert to liability under articles of chapter 9 of the Administrative Code is negligible. Paragraph 7 of Article 49.1 of the Civil Code provides for the revocation of the qualification certificate, which can be interpreted as a measure of administrative liability. Even if the expert will not be deprived of the qualification certificate, he will not be able to continue as a forensic expert. Disciplinary liability rests with an expert in the manner prescribed by Art. 192 of Labor Code of RF. The dismissal of "ordinary" expert seems correct by a termination of the employment contract due to the disqualification (cancellation of the qualifying certificate), excluding the specific performance of the employee's duties under an employment contract.

Criminal liability. The significant violations of professional duties may be followed by punishment of an expert not only by moral but also legal sanctions. In accordance with the criminal procedure legislation a forensic expert must comply with the legislation and other regulations in the field of forensic activities. So, p. 5, 6 Art. 57 of the Code of Criminal Procedure stipulates that a forensic expert bears criminal liability for knowingly giving false imprisonment (Art. 307 of the Criminal Code), and the disclosure of information that became known to him in the preliminary investigation (art. 310 of the Criminal Code). Experts are warned about the criminal liability under the said Articles of the Criminal Code every time they are referred to for producing expertise. The current legislation does not provide criminal liability for mistaken expertise. However, departmental regulations provide a system of measures aimed at preventing the direction of the conclusions with erroneous conclusions to a person or authorities designated for examination. Knowingly false expert opinion from the standpoint of criminal law is a crime against justice in the criminal procedure - new circumstances (p. 1 p. 3 of Art. 413 Code of Criminal Procedure). Studies show that the conclusion of a forensic expert is false, if it is tampered with expert research facilities, identification of field of the object has undergone a change, the actual data are incorrectly stated (distortion, fiction or concealment of signs of the object of study) or their direct denial takes place, or they are deliberately incorrectly evaluated by an expert (for example, using inappropriate methods of study), or he deliberately made the wrong conclusions. Thus, the sub- themes-scoop of an expert study achieved using techniques such as:

• - Omission, concealment, with the exception of the expert study of individual traits, facts actually established in the course of the study;
• - Supplement describing fictional details or elements, by which the study is attached to the correct character;
• - Rearrangement and displacement in the description of the individual features;
• - The replacement of certain other features of the object by other, fictional.

Ways to conceal the fact of falsity of expert opinion are:

• -Application of research methods that destroy the essential features, resulting in a fact that the second study does not give any results;
• - Evasion to give conclusion in the definitive form, the formulation of this conclusion in the likely form or mode "is not possible" (LEL).

Determination of expert opinion as "false" is possible only by the authority, which granted the criminal procedure legislation the right to appoint examination in order to establish the truth in the case. The crime is considered to be finally formed at the moment of giving (signing) false imprisonment in a written (or oral) form, irrespective of whether the authorities agreed to the preliminary investigation or the court with the conclusions of the examination and whether this has resulted in a false conclusion to conviction or acquittal of persons involved in the criminal liability.

Public danger of a false expert opinion can be explained by the fact that the indictment of false expert conclusions entail criminal prosecution of an innocent or, on the contrary, the investigation of the release a guilty. In investigating this situation the difficulty is in proving the fact of direct "deliberate falsehood." This feature is main in this part of the crime. Its absence (or failure to prove) does not entail criminal liability. The point of view seems right and grounded that the forensic expert can be held criminally liable for knowingly giving false conclusion, regardless of whether any result has come or not whether the Court has accepted this conclusion as a complete source of evidence or failed to accept. Criminal legal assessment of such cases is an incredibly difficult task due to the lack of clear criteria for distinguishing between criminal and non-criminal (incorrect) expert action. Therefore there is a need to define and formulate the base of the criminal liability for the improper performance of the duties of judicial expert. In our view, criminal liability should advance under the following conditions:

• 1. Actions of forensic expert were objectively wrong, being in conflict with the generally accepted procedures.
• 2. Court expert by virtue of his competence should be aware of the incorrectness of his actions.

An important principle of criminal law is to establish the criminal liability only if there is guilt. An intentional form of guilt in these formulations says such feature as a crime only in connection with the official position. The person, exceeding authority, uses his position held only by which he can commit the crime. Court expert is an officer regardless of his place of work, respectively knowingly false expert opinion can be given only with the direct intent. One should agree with A.A. Piontkov- sky that "all the crimes in which an element of awareness of criminal acts is introduced ("known to the perpetrator "), exclude the possibility of their committing carelessly."