Admissibility of evidence obtained with specialist participation in criminal proceedings

Abstract

The parties to criminal proceedings collect and verify evidence using, in particular, specific expertise and skills of a specialist involved in conducting relevant procedural actions. Specialist is always an individual who has rights and freedoms, which violation can result in the loss of evidence of admissibility. Competition in criminal proceedings determines focus of efforts on finding the vulnerability of the opposing party’s evidence. The purpose of this article is to identify the conditions under which evidence provided by specialist can determine the issue of admissibility of their use in criminal proceedings.

Achieving such a goal requires combined application of a number of scientific methods, including dogmatic, hermeneutic and comparative law one. Auxiliary role of a specialist is outlined quite clearly in the legislation: this is performance of paid work, which cannot be refused if the engagement is carried out by decision of the court, investigating judge, investigator or prosecutor. At the same time, lack of employment contract, social and compulsory insurance, record of work experience, etc. of such a specialist is poorly consistent with the principles of social protection in Ukraine. The paid nature creates a legal dilemma in the event of a ban on representatives of certain professions from engaging in other paid activities, in addition to their main job. Legislation does not provide equal pay for equal work of specialists. Recent efforts by the legislator to expand the range of cases of involving a specialist in criminal proceedings have led to the need to distinguish them by affiliation with a foreign state or international organization, by specialty and types of work performed. The above legal conditions relate to the sphere of human rights, and they cannot be ignored. The current state of regulation of involving a specialist in criminal proceedings increases the risk of violation of these rights by the party resorting to such involvement, primarily the prosecution. Possible situational solutions: not involving public servants or limiting the circle of involved specialists exclusively to employees of state specialized institutions, accepting the risk of recognizing evidence as inadmissible, changing the government act on the remuneration of specialists with the introduction of complexity (scientific content, safety, hygiene, etc.) of works as the main criterion (and not the level of salary at the specialist’s main workplace) and/or involving exclusively persons with an equal level of remuneration, etc. are half-baked and only emphasize the expediency of a systematic review of the institution of a specialist in criminal proceedings.