An expert opinion without proper information about the person who prepared it cannot be admissible evidence – Supreme Court

The Supreme Court pointed out that an expert opinion that does not contain proper information about the person who prepared it, their qualification as a forensic expert, data confirming the authority to conduct the relevant examination, and information about the warning given to this person regarding criminal liability does not meet the requirements of Article 102 of the Criminal Procedure Code and cannot be used to substantiate circumstances proving the guilt of a person in committing a criminal offense.

The conclusion was made in a case where the courts of first and appellate instances found the person guilty under Part 2 of Article 185 of the Criminal Code of Ukraine (theft).

In the cassation appeal, the defense indicated that the appellate court did not examine the documents of the private enterprise, which were significant for establishing the circumstances of the case, despite the corresponding motion.

Supreme Court Decision

The panel of judges of the Criminal Cassation Court canceled the appellate court's ruling and appointed a new hearing in the appellate court.

The Supreme Court noted that Part 1 of Article 102 of the Criminal Procedure Code provides that the expert opinion must specify:

• when, where, by whom (name, education, specialty, certificate of qualification as a forensic expert, experience in expert work, academic degree, academic title, expert's position) and on what basis the examination was conducted;
• the place and time of the examination;
• who was present during the examination;
• a list of questions posed to the expert;
• a description of the materials received by the expert and which materials were used by the expert;
• a detailed description of the conducted research, including methods applied in the study, obtained results, and their expert evaluation;
• reasoned answers to each posed question.

Thus, from the above, it follows that the belonging of a person to the circle of forensic experts and their authority to conduct the examination, if necessary (in case of doubt), must be confirmed by relevant information that allows verifying their competence and the legality of the opinion's preparation.

For example, the opinion available in the proceedings regarding the value of the stolen property, although named an expert opinion, does not contain proper information about the person who prepared it, their qualification as a forensic expert, or data confirming their authority to conduct the relevant examination. At the same time, the opinion lacks information about the warning given to this person regarding criminal liability.

Moreover, the defense rightly pointed out in the appellate appeal that the opinion was signed not by a forensic expert but by the director of a private enterprise, which was also an argument for the necessity of the appellate court to verify this evidence.

Despite this, the appellate court, agreeing with the conclusions of the local court regarding the admissibility of the specified evidence, did not properly assess the defense's arguments about the lack of confirmation of the authority of the person who prepared the opinion, which the court relied on to substantiate the circumstances proving the guilt of the accused in committing the criminal offense under Part 2 of Article 185 of the Criminal Code, leaving these arguments unchecked.

The ruling of the panel of judges of the Third Judicial Chamber of the Criminal Cassation Court of the Supreme Court dated April 1 in case No. 759/12716/22 (proceeding No. 51-4423km25).

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