The production of forensic construction and technical examinations is associated with the need to obtain an opinion from specialists with special knowledge in any narrow field. They are not well-known and generally available and are acquired in the process of special training or practical activities. Special knowledge in legal proceedings does not include theoretical legal material.
Description
Forensic, technical, cost expertise is a procedural action. It consists in performing research on various subjects on behalf of an authorized person. Based on the study, the specialist provides an opinion on the questions posed to him. Conducting a judicial construction and technical examination is considered as an investigative measure. This is due to the fact that it involves a cognitive process regulated by the CPC and leading to the receipt of a specific source of evidence. The latter is, in fact, the conclusion of a specialist. Essential in it are the information presented in the form of conclusions. Forensic technical examination acts as the most important procedural measure.
Distinctive features
Forensic technical examination involves the study of materials using special knowledge. This event goes beyond the strict legal regulation. In fact, the forensic technical examination (independent examination ) is aimed at providing the authorized person with those scientific provisions that can serve as a basis for resolving issues arising at the stage of the preliminary investigation and during direct proceedings at the meeting. During the procedure, “hidden” information in the subject of research is extracted with the help of special knowledge and brought into a state in which it becomes available for perception at the level of public knowledge.
Specificity
In the process of research, a specialist, based on existing knowledge, receives data that explain the nature of the traces and the mechanism of their appearance, formulate other factual data that contribute to the establishment of truth. In a broad sense, the implementation of the procedure is not associated with the identification of any new patterns. An internal belief in the truth of the conclusion, which, in turn, is subjective, acts as a condition for a specialist to formulate a conclusion on the questions posed. At the same time, when analyzing the results obtained, the expert is based on his knowledge objectively characterizing the corresponding scientific and practical sphere related to the study.
Inner conviction
It involves a certain state of consciousness of a specialist, which is achieved during the study. Internal conviction is of great importance in the activities of the subject, and extracting information for evidence, and making decisions, based on a comprehensive and complete study of the materials presented. Along with this, the expert formulates his conclusions on the basis of only a certain part of the objects available to him. The study is limited to a certain framework, limits of competence, the nature and volume of subjects of study, the source data. This is due to the fact that the body or employee who filed the application for the appointment of a forensic technical examination tentatively evaluated the reliability of all available materials and provided only those materials, the study of which can provide information useful for the proceedings.
Variety of treatments
Research varies depending on what goals it pursues. The subject of study determines the direction of the process. He indicates to identify what kind of facts, circumstances the study is intended. The objects of judicial construction and technical expertise can be studied for different purposes within the framework of various types of procedures. Each of them will have its own subject of study. For example, a charred board is studied as an object of examination of materials and substances to identify traces of a combustible liquid and other foreign compounds on it. As part of a botanical study, it is used to establish the age, type and other characteristics of wood. If it is necessary to identify the ignition mechanism, a judicial fire-technical examination is carried out . During it, the depth of burnouts is established, the circumstances in which they arose are analyzed.
Classification
Almost any forensic examination involves solving forensic tasks. Accordingly, there is a basic science for all types of research. It is forensics. At the same time, experts combine it with other basic disciplines: chemistry, physics, biology, etc. The list of objects and things that fall into the scope of attention of the subjects of evidence is quite diverse. In fire cases, for example, the following examinations may be appointed: technological, electrical, psychiatric. If necessary, fuels and lubricants and petroleum products are studied. A forensic investigation is mandatory . It includes, in particular, forensic examination of documents . In cases of fire, in addition to issues specific to these procedures, it is necessary to find out the role and relationship of the materials studied, their signs and properties with the circumstances of the accident. These issues are considered key when conducting fire-technical examinations. In determining the distinguishing features of such studies, one should proceed from the current notions of the subject of forensic science. In the framework of this science, the laws of the mechanism of crime, the occurrence of information about it and the participants in the act, the features of the collection, analysis, use of evidence are studied.
Forensic characteristic
When solving issues that arise during the investigation, the expert must have sufficient knowledge about the laws governing the formation of traces in the commission of crimes. The complex of information about typical methods of preparation, implementation of acts, concealment of signs of encroachment associated with fires forms a forensic characteristic. It includes data on:
- causes of fire in the outbreak;
- conditions of flame spread and their connection with careless or deliberate actions / inaction of persons;
- material traces of burning and so on.
The forensic characteristic is a combination of significant features, on the basis of which the key tasks of the investigation can be solved.
Essential elements
For a specialist, professional interest lies in identifying those features that are within his competence. The complex of such elements is called the technical and forensic characteristic. The components are information that was obtained by applying special knowledge, tools and techniques of the study. The characteristic mainly covers those aspects that form the objective side. These include, for example, the parameters and specifics of the spread of flame in space and its development over time, the mechanism of ignition, burning in the hearth, the means and methods of committing an act, preparing for it and hiding traces, orienting information about persons considered to be involved in the crime. In the research process, a certain set of factors is determined that are considered sufficient and necessary for ignition. Based on the result of the examination, the qualification of the crime is carried out. Accordingly, the results of the study may also determine the outcome of the investigation.
Conducting forensic construction and technical expertise
This type of research can be carried out as part of a civil or arbitration process. The basis is, as a rule, the requirement of one of the parties. Forensic technical expertise is provided for in disputes between the customer and the contractor, in cases of establishing the absence / presence of deviations from the rules and regulations, recognition of the right to real estate, its division (if it is in shared / joint ownership), allocation of a share, etc. Having examined the requirement one of the participants in the conflict, the person authorized to consider it, makes a determination. It is worth saying that the information that is necessary to carry out research is not always complete. Often controversial structures are not mentioned at all. Meanwhile, their indication has not only informational, but also procedural significance. In addition, the specialist receives, according to the established rules (even indirectly) in the framework of the case, objects of a forensic technical examination . Accordingly, he is responsible for their safety. This, in turn, predetermines the methodology of judicial construction and technical expertise . If certain structures are not indicated in the definition, then the specialist is exempted from liability, which is unacceptable in practice.
Procedural regulation
The sufficiency and admissibility of materials to be submitted to the expert shall be determined by the judge. The time to complete the study is determined in accordance with the terms provided for in the standards. The legislation allows the extension of the range of issues and the list of objects of examination, extension of the period of its implementation. To do this, the specialist must comply with the procedural requirements. In particular, the normative regulation makes it very selective in resolving issues related to the possibility of studying the structures that make up disputed households, and does not allow the expert to draw a conclusion on monetary compensation to one of the participants when, in fact, this action seems justified at first glance .
Nuances
Often, property to be divided includes buildings built without permission (unauthorized structures). According to existing practice, such designs are not investigated. Accordingly, the expert does not take them into account when determining the value of property, developing options for the division of home ownership. This is due to the fact that the right of ownership arises when the property is put into operation and legal registration with an authorized body. Accordingly, prior to carrying out these procedures, the question of division cannot be resolved in court. The corresponding right to the construction did not arise, moreover, it may not appear if it is revealed that it was erected with deviation from the project or with gross violations of the existing rules, norms, and regulations. At the same time, if a specialist, without any court instructions, confines himself to investigating only the structures put into operation and registered, he does not take into account that the legislation allows the division of objects that are not completed by construction. This is the case when, given the degree of readiness of the structure, it is possible to identify the parts to be separated, with the subsequent opportunity to complete the work. The court has the right to make a decision on the division of an unregistered facility even when it is revealed that the developer intentionally does not take measures to carry out state registration. In this case, the goal will be to evade the dispute with family members who participated in the construction of the building.
Forensic examination of documents
The need for it may appear in the proceedings of any category. These include, among others, disputes about:
- recovery of losses arising as a result of improper fulfillment of obligations by one of the parties to the contract;
- assessment of the grounds for the appearance of debt, etc.
Often, persons participating in the proceedings apply to arbitration with a statement about falsification of materials submitted by the other party as evidence. Moreover, the court, according to the rules established in article 161 of the APC, is obliged to verify the validity of such a report. The person authorized to the dispute shall take the measures specified in the legislation for this. Among them there is also a ubiquitous technical expertise . It is carried out to establish a method of creating and falsifying an act, determining the means used for this. In addition, the examination allows you to restore the contents of the damaged document, to study the material of the document. Types of research vary depending on the goal. In practice, examinations of details, imprints of seals / stamps, and document materials are performed. The first allows you to determine the method and prescription of the creation of an act or its fragment, the fact of its change, the means used for this, to reveal invisible and weakly visible records. In the process of research, the expert solves diagnostic problems. Due to this, he establishes a method of making paper, the means that were used for this. Solving problems of an identification nature ensures the establishment of the executor of the text.
A new kind of research
More recently, a forensic computer-technical examination has become used in practice. Its occurrence is associated with the active introduction of information systems. Such an examination allows you to check the conformity of technical documents on the equipment, the integrity and suitability of the devices for use. Recently, such a study has become increasingly popular in the arbitration process. The subject of study is the determination of the fact of compliance or non-compliance of technical documents of the system with the norms and standards that govern their development. For example, a contract can be examined, which is concluded for processing or creating a software system, or for performing other work with subsequent transfer to the customer of the result. If, after acceptance, the subject reveals any shortcomings, on the basis of which a civil dispute arises, at the request of one of the participants in the relationship, a computer-technical examination can be appointed.