Legal Analysis of the Expert’s Powers and Role in Criminal Proceedings Following the Legislation of Ukraine

Criminal proceedings are procedural actions that occur as a result of the commission of a criminal offence and provide for bringing the offender to justice. Thus, this type of proceedings provides for pre-trial investigation and direct judicial proceedings that ensure the effective implementation of justice in the state (provided for in Paragraph 10 of Part 1 of Article 3 of the Criminal Procedure Code of Ukraine 2013).

In general, criminal proceedings contain a fairly large number of participants in the process, which are divided into separate subgroups. In particular, the parties to the prosecution are: the prosecutor; pre-trial investigation bodies (investigative units (security agencies), control units of the National Anti-Corruption Bureau of Ukraine and detective units (detective units of the Bureau of Economic Security of Ukraine)); operational units; and the Inquirer (Section 1 of Chapter 3 of Paragraph 2). An important role in criminal proceedings is played by the defence parties, directly responsible for the function of protecting the rights of the parties, in particular: the suspect and defendant; their representatives; the acquitted and convicted person; and the defence lawyer (lawyer) (Section 1 of Chapter 3 of Paragraph 3). The parties of the injured person and their representative are the injured person and their representative (Section 1 of Chapter 3 of Paragraph 4). However, an important role in bringing an offender to criminal responsibility belongs to the category of other participants in the proceedings, namely: the civil plaintiff and the defendant; their representative; the applicant; the representative of the legal entity in respect of which the proceedings were opened; the third person in respect of whose property the issue of arrest is being resolved; the witness; the interpreter; the representative of the staff of the probation authority; the secretary of the court session; and the court administrator (Section 1 of Chapter 3 of Paragraph 5). However, in this study, special attention was paid to this category of other participants in criminal proceedings, including experts and specialists.

Thus, according to Part 1 of Article 69, in criminal proceedings, an expert acts as an individual who has the necessary technical, scientific and other professional knowledge. In particular, the expert must be authorized to conduct an expert examination following the procedure provided for by Law of Ukraine No. 4038-XII “On Forensic Examination” (1994). Its main task is to study phenomena, processes and objects, especially those related to the circumstances of committing a criminal offence, and to form conclusions about problems that arise in criminal proceedings and are related to the volume of its knowledge. In particular, Part 2 of the Criminal Procedure Code of Ukraine (2013) provides for a ban on the acquisition of expert status for persons who, in one way or another (for example, in the professional aspect), are dependent on the parties to criminal proceedings (including the injured person) (Levin Reference Levin2021).

Thus, according to the legislation of Ukraine, the expert is endowed with important functions that help in the implementation of justice, in particular during pre-trial investigation and criminal proceedings in general. Due to the participation of experts, it is possible to achieve an accurate understanding of complex scientific and technical aspects by specialists in the field of law and the court. One of the most important functions of an expert is to conduct a forensic examination – research with the help of scientific knowledge of certain processes, phenomena and objects, to prepare an opinion on the subject of judicial proceedings (Article 1 of Law of Ukraine No. 4038-XII “On Forensic Examination” 1994). In turn, this includes examining physical evidence, including fingerprints, analysing DNA samples, traces, etc. (Coulthard Reference Coulthard, Coulthard, May and Sousa-Silva2020). The examination of the said physical evidence is crucial for the clear establishment of various aspects of the offence, from the place of its commission, the determination of the motives of the offence, the identification of the victim, to the determination of the offender (Ingram Reference Ingram2021; Signorelli Reference Signorelli2023).

Forensic examination of documents consists of checking and analysing documentation of various types to determine its authenticity and integrity. Experts examine signatures, handwriting and any modifications that help establish the presence of falsification or illegal changes to the original document. Using state-of-the-art techniques, experts study paper, ink and printing technologies to understand how the document was created. This approach helps to identify the connection between the identified suspects and criminal offences by refuting or confirming the information contained in official documents. In addition, such an examination facilitates the presentation before the court of only legitimate evidence, which ensures a fair hearing of criminal cases before the court (Torbas, Stepanenko, and Murzanovskaya Reference Torbas, Stepanenko and Murzanovskaya2022).

Another equally important type of examination is the conduct of digital criminalistics, which involves the collection of evidence through the analysis of electronic data (in electronic devices, telephones, computers, etc.) relevant to a criminal offence (Klasén, Fock, and Forchheimer Reference Klasén, Fock and Forchheimer2024). Using special technologies, experts can recover deleted data, crack passwords, gain access to personal data and investigate information structures. The results of digital forensic investigations are crucial for establishing the chronology of events and determining the relationship between the defendants in the case and the offences committed (Khashashneh et al. Reference Khashashneh, Al-Billeh, Al-Hammouri and Belghit2023). In general, the purpose of conducting such examinations is to provide evidence to the court in an acceptable form to ensure compliance with the principle of integrity in the judicial process (Angel et al. Reference Angel, Mercedes, Elisa, Joaquin, Giovanna and Beatriz2024; Singh et al. Reference Singh, Singh, Singh and Nayak2023).

The next function of the expert is to provide conclusions based on a preliminary forensic examination (Article 101 of the Criminal Procedure Code of Ukraine 2013). In order to ensure a clear and understandable perception of the information presented in the conclusion for judges and jurors, experts should formulate conclusions and the methodology of the conducted research on the merits of the case. Disclosure of the methods used is essential for building trust in the expert and their conclusions. In addition, a crucial aspect is to conduct a thorough study of evidence, as this directly concerns the reliability of the conclusions drawn (Centre for Economic and Legal Research 2023). Thus, a well-developed expert opinion can significantly influence the decision of a court case because it contains an assessment of the presented evidence in terms of its reliability (Khosha Reference Khosha2023; Makarova Reference Makarova2024). In particular, the expert report allows filling in existing gaps and contradictions arising in the course of criminal proceedings, and also acts as additional evidence of the testimony of persons involved in the investigation (Ruzimurodova and Mamatov Reference Ruzimurodova and Mamatov2021).

In addition, experts actively contribute to the activities of law enforcement agencies, in particular giving advice on the collection and storage of evidence, ensuring their integrity for further investigation. They can also train police and investigative officers in identifying evidence that requires special expertise. In the course of criminal proceedings, experts interact with other specialists from various industries to obtain a comprehensive understanding of the solution to the tasks set. Moreover, specialists participate in preparatory pre-trial consultations, where they help lawyers to develop strategies based on their conclusions. They are also involved in the review of the case file to identify potential areas in which expert analysis can help (Habernal et al. Reference Habernal, Faber, Recchia, Bretthauer, Gurevych, Döhmann and Burchard2024).

Ultimately, experts are approached to present their findings in open forums or in educational institutions, which contributes to a broader perception of forensic expertise and its role in the justice system (Nestor and Baulin Reference Nestor and Baulin2022). In criminal proceedings in Ukraine, experts are assigned a rather important role, which implies not only rights but also obligations that guarantee the effectiveness of their activities and the reliability of expert opinions. The experience of experts helps not only to establish the facts, but also contributes to the strengthening of justice and improving the effectiveness of the judicial process as a whole.

Legislative Consolidation of the Concept and Role of a Specialist in Criminal Proceedings

A special role in criminal proceedings belongs to specialists who are endowed with professional knowledge and skills. According to Part 1 of Article 71 of the Criminal Procedure Code of Ukraine (2013), the main tasks of a specialist are to provide conclusions, consultations, references, explanations and other documents in the process of pre-trial investigation, or during court proceedings to resolve issues that require special abilities. In particular, Part 2 of Article 71 provides for the possibility of involving a specialist for direct implementation of technical assistance, including drawings, drawing up plans, photographing, sampling for examination and providing a variety of documentation (conclusions, references), etc. This activity is carried out by a specialist at the stage of pre-trial investigation and during the proceedings as a whole. Thus, based on the provisions of Article 71, a specialist is addressed in the following cases:

• • Need for direct technical assistance (development of plans, photographing, etc.);

• • Implementation of a pre-trial investigation into a criminal offence;

• • Existence of grounds stipulated in Part 3 of Article 214, in particular: in order to establish the circumstances of the commission of a criminal offence, it is possible to involve a specialist before entering data in the Unified Register of pre-trial investigations.

The specialist, in turn, must provide a conclusion and record indicators on technical devices that perform the functions of video recording, photography, filming, or photograph- and film-recording tools (Shablystyi et al. Reference Shablystyi, Prymachenko, Filipp, Doroshenko and Burbyka2019; Tonkonozhko Reference Tonkonozhko2021).

In general, one of the main functions of a specialist’s activity in the process of criminal proceedings is the advisory function. They are contacted at the investigation stages by representatives of law enforcement agencies for advice on specific scientific and technical aspects related to the case. Such advisory services include providing advice on the collection of evidence, primarily to assist investigators in the proper collection and storage of evidence relevant to the specialist’s competence. They also interpret complex information, such as forensic evidence, digital evidence or financial statements, to ensure that it is accessible to lawyers and judges (Antoshchuk Reference Antoshchuk2024).

Focusing the attention of the parties to criminal proceedings on circumstances that affect the course of the case, in particular, concerning evidence, is another function. For this purpose, individuals who are not interested in the investigation and have a special higher education are involved in dealing with issues that require more thorough analysis (Kovalev Reference Kovalev2024). This is followed by the preparation of appropriate reports by a specialist, which should contain the results of the methodology and conclusions obtained. These aspects should be clear and understandable because such documents are an integral part of criminal proceedings (Rohatynska and Pidhorodetska Reference Rohatynska and Pidhorodetska2022).

An important role in the process of criminal proceedings is played by the testimony of a specialist, who provides a compiled report in court that briefly highlights key conclusions and interprets complex concepts for persons who do not have special knowledge. In particular, experts should always be prepared to defend their conclusions during cross-examination. This, in turn, requires the preparation of answers to all questions related to the use of the methodology, the reliability of the research conducted and potential bias.

The procedure for attracting a specialist to obtain an opinion within the framework of establishing the circumstances of a criminal offence is initiated at the request of an authorized official. Such an official may be a representative of state bodies, including security bodies, tax service bodies, investigation units of the National Police, the State Bureau of Investigation, the National Anti-Corruption Bureau of Ukraine, etc. In addition, authorized representatives of other structural divisions of these departments who have the right to conduct a pre-trial investigation (for example, an investigator or prosecutor) can submit such requests. This approach ensures systematic receipt of expert opinions and their coordination with the legal framework regulating criminal proceedings. In addition, a specialist is important for clarifying complex issues that require special skills and knowledge. This, in turn, facilitates the process of making more informed decisions during criminal proceedings.

The main difference between a specialist and an expert is that the specialist does not conduct an independent investigation of a criminal case; their key role is to advise and interpret unclear aspects of the case. In particular, their reports are based on logical conclusions that arise solely in connection with special professional knowledge. While experts exercise their powers by directly investigating the circumstances of the case (performing DNA analysis, traces, etc.), they also draw conclusions based on their research findings.

Procedural Guarantees of the Rights of an Expert and Specialist when Collecting and Using Documents as Sources of Evidence in Criminal Proceedings by the Legislation of Ukraine and the EU

Article 84 of the Criminal Procedure Code of Ukraine (2013) establishes that evidence in criminal proceedings is recognized as obtained data, with the help of which, by the procedure established by law, the prosecutor, the investigating judge, the court and the investigator determine the existence of certain circumstances and facts related to the investigation and must be proved. In particular, this study defines the procedural sources of evidence, which include documents, physical evidence, expert opinions and testimony. For this study, it is important to accurately define the concept of documents, as provided in Article 99 – this is a material object that is specially designed to store information that is recorded using images, sound or written signs. Such information is used in the course of criminal investigation to prove the actual events and circumstances of the case (Nagel and Norton Reference Nagel and Norton2024).

Sezonov and Piddybna (Reference Sezonov and Piddybna2021) separated the concept of “documents as physical evidence” from “documents as sources of evidence” and established differences between these concepts. Thus, a document as material evidence has an irreplaceable character and is unique. It acts as important evidence in a criminal case and may contain certain traces left by the offender, which will help in the search. A significant difference between this concept is that the key role for research is not played so much by the content of the document, but by its appearance. At the same time, the document as a source of evidence is quite replaceable, because its content is important. Thus, it can be scanned or copied, and this will not affect the course of the investigation; in particular, such a document will not lose its status as a source of evidence. In this case, the appearance of the document will be of secondary importance and will not have much impact on the investigation.

According to Article 93 of the Criminal Procedure Code of Ukraine (2013), evidence (in particular, documents as sources of evidence) is collected by conducting investigative and secret search actions, being requested and received from state bodies, enterprises, organizations, local self-government bodies and employees. Evidence can be documents, information, expert opinions, audit reports and other acts of inspection, including the implementation of other procedural actions provided for by the code. However, the main importance in the course of the proof procedure is the relevance and admissibility of evidence, which are provided for in Articles 85 and 86, respectively.

To clearly understand the difference between experts and specialists, it is important to understand their roles in criminal proceedings (see Table 1). Both experts and specialists play a key role: if experts provide detailed analysis and provide conclusions, then specialists are responsible for the proper application of knowledge in technical aspects in the process of investigative actions. The result of their interaction is to ensure the objectivity and thoroughness of criminal proceedings and judicial proceedings, which ultimately helps the administration of justice.

Table 1.

Comparison of the concepts of “expert” and “specialist” in criminal proceedings

Source: created by the authors based on the Criminal Procedure Code of Ukraine (2013) and Law of Ukraine No. 4038-XII “On Forensic Examination” (1994).

To ensure the protection of the legal personality of experts and specialists in the course of criminal proceedings, procedural guarantees of their rights are established, which are consolidated in the legislation of Ukraine, in particular the Criminal Procedure Code of Ukraine (2013). Thus, Part 3 of Article 69 defines the following rights of an expert during the exercise of his powers, including during the collection and use of documents as sources of evidence:

• • To become acquainted with information on the criminal investigation concerning its subject;

• • To ask questions about the objects and subject of research;

• • To be present during the execution of all procedural measures concerning the objects and subjects of research;

• • To submit a request for obtaining additional materials necessary for the examination and to carry out other measures aimed at ensuring the examination;

• • To indicate in conclusion about the circumstances established by the expert examination, which are essential about the criminal;

• • To apply for security measures, if necessary;

• To receive remuneration and reimbursement of expenses caused by the performance of the expert examination and involvement in the judicial process to provide explanations or evidence, except in cases where the performance of the expert examination is not part of the official powers of the person involved as an expert;

• • To exercise other rights provided for by the Law of Ukraine “On Forensic Examination”.

In addition, Article 6 of Law of Ukraine No. 4038-XII “On Forensic Examination” (1994) establishes the right of an expert to unhindered access to the object under study and proper working conditions, in the case of conducting an expert examination at the place of commission of an offence or the location of the object of the offence. In particular, Article 13 assigns additional rights to the expert: to challenge the actions of the person conducting the proceedings in the case of violation of the rights of the expert by such actions; and to conduct expert research based on a contract with legal entities and individuals on issues in which they are interested, in compliance with the restrictions provided for by law.

While the procedural guarantees of the rights of specialists are enshrined in Part 4 of Article 71 of the Criminal Procedure Code of Ukraine (2013), the specialist has the right:

• • To use the necessary technical devices and special equipment during the proceedings;

• • With the permission of the party in the criminal proceedings that attracted the specialist, or the court, to ask questions to the parties to the proceedings;

• • To focus special attention on specific circumstances or features of things and documents;

• • To indicate information related to criminal proceedings, and in respect of which no questions were raised. However, the expert’s conclusion must not be evidence in a court case (Babikov Reference Babikov2024; Shablystyi and Anisimov Reference Shablystyi and Anisimov2021);

• • To get acquainted with the protocols of investigative actions in which they participated, and make comments and additions to them;

• • When conducting a pre-trial investigation of a criminal offence, provide conclusions within their competence;

• • To provide certificates and conclusions within the limits of their powers to establish the identity, ammunition, weapons, explosive devices and substances found as a result of an explosion or traces of gunpowder, as well as psychotropic and narcotic substances, their analogues and strong medicines;

• • To apply for the establishment of security measures;

• • To receive pay for the work performed and for reimbursement of the costs of research (Shramko Reference Shramko2024);

• • To provide information on issues within their area of expertise in cases provided for in Part Three of Article 245-1 of the Code.

These procedural rights have a direct guarantee of access to the collection and use of documents as sources by experts and specialists. Most important, however, is that they have the right of access to any documents and materials related to the conduct of the study. However, experts are given more access to this, which applies to the study of original documents, since the expert directly conducts an independent study to obtain new evidence. This access is key to authenticating and performing correct analysis. In addition, experts and specialists have access to electronic evidence, which enables the collection of information from various electronic sources. This includes using social media, email and other online platforms if they comply with legal standards regarding evidence collection (Ukrainian Judiciary 2022).

Guarantees of ensuring the availability of evidence and the collection and use of documents as sources of evidence by experts and specialists in criminal proceedings in Ukraine are aimed at preserving the integrity of the judicial system and simultaneously guaranteeing the effectiveness and reliability of expert and specialist conclusions. In general, the procedural rights guaranteed to experts and specialists in criminal proceedings are designed to ensure proper access to evidence, independence and respect for professional integrity.

Speaking about ensuring the procedural rights of experts and specialists in EU law, Article 47 of the Charter of Fundamental Rights of the European Union (European Union 2012) stipulates that everyone has the right to obtain an effective remedy in court proceedings, including legal advice. In particular, the consideration of the case should be open and fair. The Article highlights the importance of ensuring full legal protection, which includes the involvement of experts and specialists who play a key role in criminal proceedings since these specialists are endowed with special knowledge and skills that help them in establishing new circumstances in the case.

However, unlike the legislation of Ukraine, some EU member states do not distinguish between the concepts of “expert” and “specialist”, but use these terms as synonyms. For example, there is no official definition of “expert” in Dutch criminal law, but a judge can invite any person with a deeper knowledge of a particular topic as an expert. This confirms the lack of distinction between specialists and experts. There is a similar situation with differentiation in Belgium; in particular, if there is a need for a special examination, a specialist can be involved, without clearly defining the differences between a specialist and an expert. In particular, experts may be appointed by the court based on their qualifications and experience in the relevant field. In addition, French legislation also does not have such a distinction, and, if necessary, an expert acts as a person with special knowledge (European Criminal Bar Association 2024). Thus, such a lack of differentiation between specialists and experts in different EU states indicates a pragmatic approach to legal proceedings. In particular, it simplifies the involvement of specialists in criminal proceedings because, in such legal systems, any highly qualified person with relevant knowledge has the right to be an expert (Christensen Reference Christensen2023).

The main legal act of the EU that establishes and protects the procedural rights of experts is the Guidelines on the Role of Court-Appointed Experts in Judicial Proceedings of the Council of Europe’s Member States (European Commission for the Efficiency of Justice 2014). Thus, according to Article 109, an expert has the right to expect to receive instructions on how to draw up an expert opinion. They can also receive information and recommendations regarding the expert’s personal and procedural powers. It is important that, if necessary and at the request of the expert, the judge should help them to obtain more accurate conclusions about the investigation.

Article 110 of the Guidelines, in turn, establishes the full accessibility of the expert regarding the materials of criminal proceedings, and their access to the subject and object of the case, and the place of commission of the offence, which requires expert research. Thus, the expert has the right to receive a copy of the original resolution on requesting evidence or a power of attorney to conduct an expert examination. If the expert is not allowed to review this document, they may be unable to provide an expert opinion. Furthermore, Article 111 sets out a recommendation that the court send a copy of the decision on the case to the expert who was directly involved, to establish feedback. In general, the legislative consolidation of the activities of experts (specialists) in criminal proceedings in the EU demonstrates an integrated approach aimed at ensuring effective compliance with the law and guaranteeing the protection of fundamental human rights (in particular, the right to a fair trial). Key regulations establish rules on the use and admissibility of expert opinions (Table 2).

Table 2.

Comparison of legal regulation of rights and requirements for experts and specialists in Ukraine and the European Union (EU)

Source: created by the authors based on the Criminal Procedure Code of Ukraine (2013), Law of Ukraine No. 4038-XII “On Forensic Examination” (1994), Charter of Fundamental Rights of the European Union (European Union 2012) and Guidelines on the Role of Court-Appointed Experts in Judicial Proceedings of Council of Europe’s Member States (European Commission for the Efficiency of Justice 2014).

The results of the comparative analysis show that, although both Ukraine and the EU recognize the importance of experts and specialists in criminal proceedings, there are significant differences in their regulatory frameworks, rights and obligations, and functioning. In particular, the Criminal Procedure Code of Ukraine (2013) regulates their functional duties and rights within the framework of Ukrainian legislation. Meanwhile, the EU relies on a set of relevant legislation that allows member states to exercise flexibility in dealing with these issues.