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Objectivity and subjectivity in the criminalistical expertise


Author: Neicuţescu Ovidiu
Degree:doctor of law
Speciality: 12.00.08 - Criminal Law (with specification: Criminal Law, Criminology, Criminal Procedure Law, Criminalistics, Judicial Expertise, Executional Law; Theory of The Operative - Investigation Activity)
Year:2009
Scientific adviser: Gheorghe Golubenco
doctor, associate professor (docent), Free International University of Moldova
Institution: Free International University of Moldova
Scientific council: D 30-12.00.08-27.03.08
Moldova State University

Status

The thesis was presented on the 29 August, 2009 at the meeting of the Scientific Council and now it is under consideration of the National Council.

Abstract

Adobe PDF document – 0.29 Mb / in romanian

Thesis

CZU 343.98:17(043.3)=135.1/N 44

Adobe PDF document 0.92 Mb / in romanian
172 pages

Keywords

objectivity, subjectivity, specialist, expert, subject of the process, criminalistical expertise, technical-scientific conclusion, specialty knowledge, expertise report, identification, diagnosing, conclusion evaluation, inner conviction, expertise error.



Summary

Efficiency enhancing of the activity of the organs responsible for law protection is closely related to the application in this activity of the most recent scientific and humanitarian achievements. Thus the criminalistical expertise becomes an efficient means that explains and interprets facts ensuring people’s fundamental rights and freedoms.

The judicial expertise represents a type of practical activity, carried out by specialists that have to examine some facts, it is based on an official decision of the criminal investigation authorities or a court order when required by law, in order to establish the truth in criminal, civil and administrative cases.

The criminalistical expertise is a component part, a distinct class of judicial expertise in criminal, civil and administrative cases – an examination of material objects, some processes and phenomena carried out by competent persons applying special knowledge, based on criminalistical achievements and processual norms in order to resolve cases investigated by the criminal investigation authorities and the court of law.

The criminalistical expertise according to the processual-organizational criteria can be classified: -according to their obligatory character, into - obligatory and optional; -according to the volume of research, into – principal and supplementary; - according to consecutiveness of execution, into – initial and repeated (counter-valuation); - according to the number of specialists involved, into – those carried out by one expert and a committee; - according to the number of specialties, into – one sphere expertise and complex expertise; - according to the character of their objectives, into – identifiable and diagnostic; - according to the moment of disposing, into – those ordered at the stage of criminal investigation and those ordered during the judicial debates; - according to the spheres of specialty knowledge, into 3 subclasses – 1) traditional criminalistical expertise; 2) untraditional expertise created at the end of the 20-th century; 3) criminalistical expertise of substances, materials and articles.

The expert is an independent subject of the process, that has certain processual obligations and rights that distinguish him from the other subjects, including witnesses. A distinctive feature of the expert is the fact that he is objective, uninterested in the case. His main duty is to present the court judicial evidence – the expertise report. The expert has no probing information beforehand (a priori) – he obtains it during special investigations using specialty knowledge.

The status of the expert is established by law through his processual obligations and rights. It is suggested to add an article to the Criminal Procedure Code of Romania, that would specify not only the rights of the expert, as it is provided by the present code, but also his obligations. The expert has no judicial interests in the case, his participation is not determined by certain rights, but by the main obligation – to formulate objective conclusions to the questions issued by the court. In this respect, in the Law of the Republic of Moldova “With respect to the Judicial Expertise from 23.06.2000” should be underlined and formulated first of all the obligations of the expert and then his rights.

The expertise report is the final act of an expert's activity, a written communication about the course and results of his investigations. It is suggested to supplement the structure of the expertise report stipulated in the art. 123 PPC of Romania and art. 151 PPC of Moldova, with the methods of research used by the expert, the institution issuing the method, the source where it is published – important components necessary for the correct appreciation of the conclusions by the one who ordered the expertise.

The author brings arguments and other recommendations: application in practice of an expertise report evaluation algorithm; raising for discussion with the perspective of implementing the possibility of making conclusions on behalf of the juridical person; modification of paragraph 2 of art. 147 of PPC of Moldova; in the processual legislation of Romania to regulate the institute of the independent expert and to enlarge the circle of subjects empowered with the right to collect samples for comparative researches etc.

The improving measures of the institute of criminalistical expertise from Romania and Moldova proposed by the author have a complex, versatile character and are directed to giving more mobility and dynamism to the modern exigencies of an objective justice by enhancing the quality of the criminalistical expertise reports, eliminating the elements of subjectivism in this activity.