The historical determinism of the discussion of ideas about expert initiative in criminal proceedings

The purpose of the presented research is to substantiate the need to improve the institution of expert initiative in domestic criminal proceedings.

The tasks of the work are due to the insufficient elaboration of the question of the concept and limits of expert initiative in criminal proceedings, as well as the role of expert discretion in the process of initiating various decisions and actions, despite the controversial nature of the problem of regulation and implementation of expert initiative in criminal proceedings. In this regard, the following tasks can be distinguished: historical and legal analysis of the formation of ideas about the expert initiative in different conditions; discussion of the conceptual apparatus of the institute of expert initiative, namely the very concept of expert initiative, its limits and scope; consideration of expert initiative in the system of evaluative concepts.

The methodology of this article, for the most part, is traditional, and includes general scientific methods: dialectical; logical; method of logical analysis and synthesis, induction and deduction, generalization, abstraction, analogy, ascent from the abstract to the concrete, functional and systemic methods of cognition. In the structure of the research methodology, which made it possible to detail scientific ideas about the nature and essence of the expert initiative, an important place was occupied by: historical-legal; formal-logical; institutional; comparative-legal; interpretative methods.

Results: At the moment, the right of expert initiative is enshrined in: paragraph 4 of Part 3 of Article 57 and Part 2 of Article 204 of the Code of Criminal Procedure of the Russian Federation. However, there is no consensus on the essence of this norm in the scientific and practical environment, despite the historical conditionality of such discussions. A number of scientists believe that the expert initiative is associated with such a form of realization of the right as use, i.e. with the discretion of the expert, and is optional for him. The other part of the scientific community considers the expert's initiative as a duty, i.e. the implementation of this norm, in their opinion, should take place in the form of execution. In accordance with this, different approaches to the definition of an expert initiative are also found. It seems that the essence of the expert initiative is most accurately manifested through the discretion of the expert, and is not limited to the duplication of the expert's powers specified in Part 4 of Article 57 of the Code of Criminal Procedure of the Russian Federation. Setting the task in the key of studying evaluative concepts opens up the prospect for further research on the chosen topic.

Conclusions: In the absence of legislative consolidation of the concept of expert initiative, its limits and scope, there is not a linguistic conflict, but an incompleteness and insufficiency in regulating the initiation of actions and decisions by an expert within the competence of this participant in the criminal process. In order to make up for it, it is necessary to provide in art. 5 of the Code of Criminal Procedure of the Russian Federation the following provision: expert initiative is the professional activity of an expert, carried out at his discretion within the competence, and consisting in the freedom of choice of scientific technical and forensic means and methods of applying special knowledge, expert techniques and recommendations in order to prevent, disclose and investigate crimes.

1. Boitsov A.A. [The right of expert initiative from the perspective of legal hermeneutics]. Theory and practice of forensic examination. 2019;(2):115–127. DOI: 10.30764/1819-2785-2019-14-2-115-127. (In Russ.)]

2. Dukhovskiy M.V. [Russian criminal trial]. M.: Warehouse publishing house in the bookstore of M.V. Klyukin; 1908. (In Russ.)]

3. Dyakonova O.G. [The right of an expert to file petitions related to the appointment and production of a forensic examination]. Bulletin of the O.E. Kutafin University (MGUA). 2019;(5):66–78. DOI: 10.17803/2311-5998.2019.57.5.066-078. (In Russ.)]

4. Zaitseva E.A. [The concept of the development of the Institute of forensic expertise in the conditions of adversarial criminal proceedings]. M.: Yurlitinform; 2010. (In Russ.)]

5. Zorin R.G., Taletsky N.S. [Forms of implementation of expert initiative in criminal proceedings]. Conceptual foundations of modern criminology: theory and practice: materials of the International Scientific and Practical Conference, dedicated to The 95th anniversary of the birth of the hero. a scientist Rep. Belarus. Minsk: BSU; 2019. (In Russ.)]

6. Zuikova N.A., Golovko S.A. [On the issue of expert initiative]. Bulletin of Economic Security. 2022;(5):80–82. DOI: 10.24412/2414-3995-2022-5-80-82. (In Russ.)]

7. Mayorova E.I. [Features of expert prevention in the production of forensic environmental examinations]. Law and the State. 2018;(3–4):144–154. (In Russ.)]

8. Melnik S.L. [On the boundaries of the expert initiative]. Bulletin of the Kaliningrad branch of the St. Petersburg University of the Ministry of Internal Affairs of Russia. 2017;(2):20–22. (In Russ.)]

9. Melnik S.L., Revenko Ya.D. [On the question of the establishment of the Institute of expert initiative in the production of forensic medical examinations in Russia]. Journal of Russian Law. 2017;(2):124–130. DOI: 10.12737/24123. (In Russ.)]

10. Nikitina I.E. [Actual problems of cooperation between European states in the field of internal affairs and justice in the field of forensic and operational investigative activities]. Theory and practice of forensic examination. 2017;(3):110–118. (In Russ.)]

11. Khmyz A.I. [Questions about expert prevention in the production of forensic examination]. Bulletin of the Moscow University of the Ministry of Internal Affairs of Russia. 2019;(1):105–108. DOI: 10.24411/2073-0454-2019-10027. (In Russ.)]

12. Cheltsov M.A., Cheltsova N.V. [Conducting expertise in the Soviet criminal process]. M.: Gosyurizdat; 1954. (In Russ.)]

13. Shlyakhov A.R. [Procedural and organizational foundations of forensic examination]. M.: Ministry of Justice of the USSR. The All-Union. scientific research. Institute of Official examinations; 1972. (In Russ.)]