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ABSTRACT
The article analyzes the issues related to the assessment of the acceptability of an expert’s opinion in the conduct of
criminal proceedings, in particular, the requirements for the acceptability of an expert's opinion and the issues that
should be paid attention to in its assessment. Also, as a result of the analysis, it is proposed to supplement Article 187
of the Criminal Procedure Code of the Republic of Uzbekistan with a new norm, which stipulates that the conclusions
based on the evidence found unacceptable by the court in the expert opinion are also considered inappropriate. The
use of such conclusions as evidence is prohibited.
KEYWORDS
Expert opinion, acceptability of specialist opinion, expert, the examination, proof, to prove.
INTRODUCTION
According to the criminal procedural legislation, an
expert opinion is one of the types (sources) of
evidence and is given by conducting appropriate
research on the case. In turn, the expert's opinion, like
other types of evidence, must meet the requirements
set for them and require proper evaluation. In this case,
the expert's opinion, like other types of evidence, is
evaluated from the point of view of three criteria, i.e.
relevance, acceptability, and reliability. A.A.Zulfugorov
also emphasized that the expert's opinion is
Research Article
SOME ISSUES OF ASSESSING ADMISSIBILITY OF THE EXPERT'S
CONCLUSION IN CRIMINAL CASES
Submission Date:
June 08, 2024,
Accepted Date:
June 13, 2024,
Published Date:
June 18, 2024
Crossref doi:
https://doi.org/10.37547/ajsshr/Volume04Issue06-07
Eshnazarov Muradkasim Khamzayevich
Independent researcher of the Law Enforcement Academy of the Republic of Uzbekistan, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ajsshr
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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considered one of the most important evidence in the
case and is evaluated by the investigator, investigator,
prosecutor, and judge like all other evidence [1, P.115].
Accordingly, in this paragraph of the research work, we
will analyze the issues of assessing the acceptability of
the expert's opinion. The admissibility or inadmissibility
of evidence affects the decision of the case. Based on
the importance of the admissibility of evidence, the
Constitution of the Republic of Uzbekistan introduced
a provision prohibiting the use of evidence obtained in
violation of legal requirements in the implementation
of justice [2].
K.I. Sutyagin notes that the Institute of Admissibility of
Evidence prevents law enforcement officers from
illegal behavior, abuses in the implementation of
procedural actions, and negligent treatment of legal
norms when collecting evidence [3, pp.48-53], P.A.
Lupinskaya and M. Niyazov said that the establishment
of rules on the admissibility of evidence in criminal
proceedings is of particular importance as a guarantee
of human rights and freedoms and justice, to prevent
the use of any forms of violence against a person, to
protect the suspect, the accused and the defendant
from self-incrimination. notes that it serves to ensure
the inviolability of testimony to individuals [4, pp 72-
76].
The conditions of admissibility of evidence evaluation
serve as a guarantee of individual rights in the
implementation of investigative and procedural
actions to protect them from unjustified accusations.
The concept of admissibility of evidence is defined in
the current criminal-procedural legislation. In
particular, the evidence is considered admissible if it is
collected in the prescribed manner and complies with
the conditions specified in Articles 88, 90, 92 - 94 of the
Criminal Procedure Code [5].
If we analyze this norm, two conditions must be met to
consider evidence as acceptable evidence. First, it is
the collection of evidence by the law, and second, the
compliance of the evidence with the provisions of
Articles 88, 90, 92-94 of the Code of Criminal
Procedure.
Authors such as B.A.Rajabov, Sh.Kh.Inomjonov and
I.V.Abrosimov also noted that to consider the evidence
acceptable evidence, it is necessary to observe the
order of their collection and to observe the rules
established by law when collecting them [6, P.93].
In the criminal-procedural legislation, the collection of
evidence by the procedure established by law is not a
separate article but is expressed mainly in the
established norms regarding the conduct of
investigative actions (the third section of the Code of
Criminal
Procedure
entitled
“Evidence
and
Circumstances to be Proved”).
At the same time, in determining the conditions of
admissibility of evidence, it is required to follow the
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general rules of proof, including ensuring the rights
and legal interests of individuals and legal entities in
the process of proof, observing the established
procedure for recording evidence and confirming the
correctness of their recording, as well as the conditions
for checking evidence. will be done.
As noted by B.Rajabov, non-compliance with the
general conditions of proof leads to a violation of these
conditions and is the basis for finding the evidence
collected in the case inadmissible [7, P.72].
As in the case of any evidence, when assessing the
acceptability of an expert's opinion, it is necessary to
know the subjects evaluating it and the evaluation
criteria, as well as to analyze them. Under Article 95 of
the Code of Criminal Procedure, the investigator, the
investigator, the prosecutor, and the court are the
persons authorized to evaluate the evidence. At the
same time, although it is not provided for in Article 95
of the Code of Criminal Procedure, the official of the
div investigating before the investigation has the
authority to evaluate the expert's opinion [8]. In this
case, the expert's opinion is evaluated according to its
scientific validity and compliance with all the
procedural rules established for carrying out the
expertise.
In particular, A.Kh.Rakhmankulov and D.M.Mirazov
noted that the expert's opinion, together with other
evidence collected in the case, will be evaluated from
the point of view of its scientific basis and compliance
with all the procedural rules established for the
conduct of expertise [9, P.205]. G. Nabiyev also
touches on this issue and emphasizes that when
assessing the acceptability of an expert's opinion, it is
necessary to take into account the official rules
specified in Article 187 of the Criminal Procedure Code
of the Republic of Uzbekistan, in which the legislator
determines illegal methods of obtaining factual
information [10, P.189].
One can fully agree with the opinions of these authors
regarding the consideration of the provisions outlined
in Article 187 of the Code of Criminal Procedure
regarding the assessment of the acceptability of an
expert's opinion. This norm defines the subjects of
evaluation of the expert's opinion and the
circumstances to be taken into account in its
evaluation (scientific basis and compliance with all the
procedural rules established for the conduct of
expertise). These assessment criteria are important in
determining the admissibility of an expert's opinion
and in deciding on a case.
Therefore, if we conclude from the above, the official
of the div conducting the pre-investigation
investigation, investigator, investigator, prosecutor, or
court is competent to evaluate the expert's opinion,
including its acceptability.
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Accordingly, it is appropriate to include an official of
the pre-investigation div as a subject authorized to
evaluate evidence in Article 95 of the Criminal
Procedure Code.
Today, different views are put forward regarding the
criteria of the acceptability conditions for evaluating
the expert's opinion. In particular, in the modern legal
literature on the issues of the right of evidence, it is
noted that the expert's opinion must be evaluated
according to such criteria (elements) as whether it is
obtained from a legal source, the use of legal methods
in obtaining it, and whether it is obtained from the
relevant authorized subjects [11, P.17], E.S. Mazur
included such criteria as the general elements of
evaluating the acceptability of an expert opinion,
analyzing compliance with the procedural order of
preparing, appointing and conducting an expert
opinion, determining the completeness of the opinion,
determining the scientific validity of the opinion and its
place in the evidence system [12, P.364].
You can agree with the opinions of these authors.
Because evaluating the acceptability of an expert’s
opinion through these criteria means that it will have
legal force as evidence.
A.K. Zakurlayev noted that the evaluation of the
expert's opinion is based on inner feelings, and noted
that the following circumstances are checked when
evaluating its acceptability:
- compliance with the requirements of criminal-
procedural legislation in the appointment and conduct
of expertise;
- justification of the given expert opinion;
- whether the materials studied during the examination
meet the requirements, the methods and methods
used during the examination are correctly used;
- compliance of the facts determined by the expert
with the evidence collected in the case [13, P.3].
It should be noted that these criteria of admissibility of
evidence are also used in assessing the admissibility of
expert opinion.
D.B.Bazarova and I.R.Astanov also touched on the
issue of evaluation of the expert opinion and noted
that the expert opinion, like any evidence, is analyzed
based on the general principle of evidence evaluation
and its acceptability is evaluated based on the internal
confidence of officials [14, P.73].
Analyzing these criteria, it is necessary to take into
account several cases when considering the criterion
that the evidence must be obtained by the relevant
subject to assess the acceptability of the expert's
opinion.
First, the examination must be conducted by an expert
who has the right to conduct it. Whichever expert is
assigned to conduct the expertise, this expert must
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conduct the expertise and give an appropriate
conclusion. If the case is not assigned to the
management of the expert, it is not possible to carry
out the personal expertise. According to Article 67 of
the Code of Criminal Procedure, it should be conducted
by a person with special knowledge to give a
conclusion. A.N. Petrukhina Y.S. Authors such as Mazur
noted that to assess the acceptability of an expert's
opinion, it is necessary to take into account the
expert's qualifications, lack of interest in the
proceedings, and the absence of grounds for its
rejection [15, P.114].
It is possible to agree with the opinion of these authors
that the expert should have the appropriate
qualification when assessing the acceptability of the
expert's opinion. However, the question of refusing an
expert is part of the criterion of compliance with the
established rules and regulations for taking procedural
actions in obtaining evidence under our current
legislation.
secondly, before the investigation, it is not possible to
examine without the decision or ruling of the official of
the inspection div, the investigator, the investigator,
the prosecutor, or the court. According to Article 180
of the Criminal Procedure Code, the official of the div
conducting the pre-investigation investigation, the
investigator, the investigator makes a decision, and the
court issues a ruling on the appointment of an expert.
In these cases, the expert's opinion is considered
unacceptable based on the fact that it was obtained by
a person who does not have the authority to collect
evidence, and it cannot be used as a basis for
prosecution.
Also, if expert investigation action was assigned by an
investigator or investigator who did not accept the
case by the procedure established by the law, was not
included in the investigation or investigation team of
the criminal case, if an expert opinion was given by the
relevant expert, this expert opinion should be
considered unacceptable during their evaluation.
The second condition for evaluating the admissibility of
evidence is related to the sources of evidence, and any
evidence must be obtained only from the sources of
evidence provided for in the second part of Article 81
of the Code of Criminal Procedure.
Expert opinion is also provided as one of the sources of
evidence in Article 81 of the Code of Criminal
Procedure. Authors such as D. B. Bazarova, I. R.
Astanov, and A. A. Zulfukharov also recognize that
expert opinion is a direct source of evidence [16, pp.115-
122]. In our opinion, there are no problems in assessing
whether the expert's opinion is obtained from a legal
source. According to the second part of Article 81 of
the Code of Criminal Procedure, an expert opinion is a
direct source of evidence. Y.K. Orlov also touched on
this issue, he noted that there are specific features in
assessing the acceptability of an expert's opinion, in
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particular, there is no problem with the fact that the
expert's opinion is obtained from a legal source [17,
P.133].
It should be noted that, as the expert opinion is a direct
source of evidence when assessing its admissibility,
authorized officials must assess compliance with all
procedural rules specified in the Criminal Procedure
Code for conducting an expert opinion.
The next condition for assessing the acceptability of an
expert's opinion is the state of compliance with the
rules for conducting procedural actions related to
obtaining an expert's opinion. If these requirements
are met, if an expert's opinion is obtained, the evidence
is considered acceptable. When assessing the
acceptability of an expert's opinion on these grounds,
special attention should be paid to the following two
cases:
first of all, when assessing the acceptability of an
expert's opinion, it is necessary to check whether or
not the rights of the suspect, the accused, or the
defendant are guaranteed by the law at the time of the
appointment of the expert.
Article 179 of the Criminal Procedure Code defines the
rights of the suspect, the accused, and the defendant
in appointing and conducting an expert examination,
and when evaluating the conclusion, authorized
officials are required to check the issue of the provision
of these rights and evaluate the expert opinion
accordingly.
secondly, when evaluating the acceptability of an
expert's opinion, before the investigation, it is
necessary to study whether there are grounds for
rejecting the expert by the official of the inspection
div, the investigator, the investigator, the
prosecutor, or the court.
Article 78 of the Criminal Procedure Code defines the
grounds for rejecting an expert, and it is not possible
to conduct an expert examination by an expert who
should be rejected in the case. In this case, the expert
should be rejected by the participants of the criminal
proceedings or should be rejected by himself. Also, if
the expertise is conducted by several experts, it is
necessary to assess whether each expert has the
authority to conduct the case and whether or not to
reject them.
In our opinion, if the expert's opinion is obtained in
violation of the rights guaranteed by the law of the
suspect, the accused, or the defendant during the
appointment of the expert, or if there are grounds for
rejecting the expert, then the expert's opinion is
considered unacceptable based on the violation of the
norms of criminal procedural legislation.
In our opinion, it is not appropriate to expand the
capabilities of criminal prosecution bodies in the
process of proof based on the evidence obtained by
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illegal means or its results during the conduct of a
criminal case.
Therefore, it is appropriate to reflect this provision in
our national legislation. After all, not only the evidence
obtained by illegal means, but also the expert
conclusions obtained as a result of the study of such
evidence are deemed unacceptable, and the
"initiatives" of the criminal prosecution authorities
aimed at using inappropriate evidence or collecting
evidence in such ways are more strict. it will be possible
to restrict based on broader criteria.
Accordingly, it is proposed to supplement Article 187 of
the Criminal Procedure Code of the Republic of
Uzbekistan with the fourth part in the following
version: “Conclusions based on evidence found
inadmissible by the court in the expert's report are
considered inadmissible. It is forbidden to use such
conclusions as evidence.
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