The Plenum of the Supreme Court excluded from its resolution the reference to the possibility of reviewing forensic examinations

The Supreme Court strengthened its position on the inadmissibility of raising legal issues before experts, but excluded from its recommendations all mention of the possibility of involving specialists, including for review.

On June 29, 2021, the Plenum of the Supreme Court of Russia adopted a resolution "On Amendments to Certain Resolutions of the Plenum of the Supreme Court of the Russian Federation on Criminal Cases". Among other things, he changed the Decree of December 21, 2010 No. 28 "On forensic examination in criminal cases."

The Plenum of the Supreme Court, in particular, clarified its position on the inadmissibility of raising legal questions before forensic experts, adding that "questions cannot also be posed to an expert to assess the reliability of the testimony of a suspect, accused, victim or witness." If the expert opinion contains conclusions about the legal assessment of the act or about the reliability of the testimonies of the interrogated persons, it cannot be recognized as admissible evidence in this part, the Supreme Court stressed.

At the same time, the Supreme Court completely excluded from the decision all indications that the court could involve specialists in the criminal process, including "to assist in assessing the expert's opinion and interrogating the expert" (that is, for reviewing forensic examinations).

Dmitry Dubrovsky, a researcher at the Center for Independent Sociological Research (included in the register of "foreign agents"), shared his opinion on this matter with the SOVA Center:

"In fact, the ability of a specialist to help the defense in assessing forensic examination has been virtually destroyed. It is assumed that the court itself should deal with this. However, if we are talking about special forensic examination in cases of extremism, there are numerous examples that the court not only does not evaluate the examination, but generally includes it in the sentence using the copy-paste method, which was also noted by the European Court of Human Rights (ECHR) in the cases " Dmitrievsky v. Russia " and " Ibragim Ibragimov and others v. Russia ". There are a lot of examples of monstrous, unprofessional, not related to science expertise.

In principle, the evaluation of the examinations, which was given by specialists, was supposed to help not so much the defense as the court - in assessing the scientific side of the proposed conclusion. In practice, judges often ignored specialists anyway, and yet they suffered, listened, and attached conclusions. This could then be used as a basis for cassation and for complaints to the ECtHR. What can a specialist do now? Will be able to say something about the subject of the dispute - to provide an alternative study. But here the second problem arises: the court does not perceive such conclusions as equal, it considers that there is an objective examination of the professor, on the one hand, and a paid research by a specialist, on the other. For the court, the expertise underlying the case is initially unshakable.

So in an interesting way, the Supreme Court heard the recommendations of the ECtHR. After all, they say that the court reads expert opinions rather poorly and allows experts to answer legal questions. To this, the Supreme Court says: experts will not evaluate the scientific side of the examination. But in fact, the court never evaluates it at all. The courts are not only uncritically related to examinations, they also do not have the professional competence to assess stupidity, bias and unprofessionalism. So the position of the defense obviously worsened.

This mechanism did not exist for long, since 2010, but it was used in practice. Now the court has been placed in such a position: the defense cannot involve a specialist, and the court itself, which does not have professional competencies regarding what the expert wrote, remains without scientists commenting on the scientific component of the examination. It can be assumed that this change will be followed by a new wave of applications to the ECtHR, as it will increase the number of categorically insane examinations. Under these conditions, our Dissernet project on forensic examinations will be even more in demand : we will be able to tell how many such examinations are used in courts.”

Sources

• Resolution of the Plenum of the Supreme Court of the Russian Federation No. 22. On Amendments to Certain Resolutions of the Plenum of the Supreme Court of the Russian Federation on Criminal Cases // Website of the Supreme Court of Russia. 2021. June 29.