How to challenge the conclusion of the examination. How to disprove any expertise

06.10.2021 -

As a result of providing the court with an expert opinion with biased conclusions, the judge made a decision based on the false conclusions of the examination. The party in the case found itself in a difficult situation, money was lost and there was no way to defend their rights. The current circumstances are no exception. By the end of this article, we will describe in detail the algorithm of actions that will help get out of this situation.

In practice, quite often there are cases when there are doubts about the validity of the expert's opinion, produced by order of the court or other body.

The reasons may be:

Incompetence of the expert (inconsistency of education with the type of research carried out);

Insufficient work experience as an expert (low level of training);

Wrong choice of research methodology (guideline);

The use of non-approved literature (normative, scientific or educational);

Failure to comply with the approved procedure for research (calculations);

Lack of substantiation of the conclusion, the giving of a knowingly false conclusion by the expert and many other violations.

Re-examination or evaluation of evidence.

The person who ordered the examination may appoint a second examination, however, in connection with the current requirements of the law, disagreement with the previously made conclusion must be justified. Due to the fact that the principle of the adversarial nature of the parties is the most important principle of procedural law, the reasons for disagreeing with the expert's opinion should be presented by the dissenting party. Sometimes it is difficult to do this, since for the production of a study, and for its evaluation, it is necessary to have special knowledge. It is difficult for the party involved in the case, even with the participation of a representative who, as a rule, has only a legal education, to judge the conclusions of the expert’s opinion, including the choice and correctness of the application of methods, guidelines and other regulatory and scientific literature. Under such circumstances, it is difficult to do without the involvement of a person who is knowledgeable in the type of examination in which the expert study was carried out.

It should be noted that any evidence presented to the court is subject to evaluation. The expert opinion is also such evidence and is evaluated in a trial according to the general rules. (Article 67 of the Code of Civil Procedure of the Russian Federation; Article 88 of the Code of Criminal Procedure of the Russian Federation; Article 71 of the Arbitration Procedure Code of the Russian Federation; Article 26.11 of the Code of Administrative Offenses of the Russian Federation). The person who appointed the examination is guided by the law and evaluates the conclusion according to his inner conviction, based on a comprehensive, complete and objective consideration of all the circumstances of the case in their totality.

Solving a problem or how to find a way out.

A full assessment of the expert's judicial opinion allows you to see expert errors. But from judicial practice it is clear that, basically, judges are only interested in the conclusions of the expert opinion. And his analysis is reduced only to checking the completeness of the conclusions. This is understandable, since the person who appointed the examination is not able to independently analyze the scientific validity of the conclusions of the conclusion, the correctness of the choice and application of research methods, as well as other stages of research and calculations, because for such an analysis it is necessary to have special knowledge. For this reason, a special approach is required to assess the expert opinion, since this evidence is based on the use of special knowledge that the person who ordered the examination may not have.

Evaluation of the expert opinion is the process of examining the submitted opinion, which aims to determine several important aspects: compliance with the current legislation, as well as the factual materials of the case; correct choice of research methods; compliance with the procedural order of the examination; correct assessment of the identification features of objects and materials; compliance with the requirements for the advantage in the use of non-destructive research methods; in case of obvious insufficiency of materials, the presence of petitions for the provision of additional materials for research; complete, consistent and logical presentation of materials and conclusions in the final document.

When conducting the process of analyzing the expert opinion, the materials of the case, the initial data that became the source for the expert’s research, the definition / decision on the appointment of an examination, research methods and other regulatory documents, the research part and conclusions of the reviewed opinion, the form of the opinion and the availability of the necessary data are carefully studied, actions of an expert (availability of the necessary petitions), which judges, investigators, parties to the case and their representatives cannot fully do, as has already been stated above, for this it is necessary to have special knowledge.

The result of such verification of compliance by the forensic expert with the totality of the above details of the study is a review.

Review from the point of view of procedural law.

From the point of view of procedural legislation, the assessment of the validity and reliability of the expert's opinion is the actual competitiveness of specialists. This principle of this legislation is implemented through the involvement of a specialist / expert (a person with special knowledge who is involved in the proceedings, including for posing questions to an expert, as well as for explaining to the parties and the court issues within his professional competence (Article 188 of the Code of Civil Procedure of the Russian Federation; Article 58 of the Criminal Code of the Russian Federation; Art. .55.1 APC RF)). In accordance with Art. 19 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 21, 2010 No. 28 “On forensic examination in criminal cases”, “a specialist may be involved to assist in assessing the expert’s opinion and interrogating an expert at the request of a party or at the initiative of the court. The specialist gives explanations in the form of oral testimony or a written conclusion. According to the explanations of the Plenum of the Supreme Court of the Russian Federation, the specialist does not conduct a study of material evidence and does not formulate conclusions, but only expresses a judgment on the issues put before him by the parties.

Such an implementation of this principle of competitiveness of specialists is the practice of production by knowledgeable persons (reviewers) of a review of the expert's opinion. The initiator of the production of such reviews quite often are lawyers. (Article 6 of the Federal Law “On Advocacy and Advocacy in the Russian Federation”). Nevertheless, it is worth noting that with proper use of procedural rights, any person participating in the case, or through his representative, can independently order a review. Despite the fact that the process of reviewing a judicial opinion is the use of special knowledge in an extra-procedural form, the review made can easily be attached to the case file.

The essence of the review.

Due to the fact that the court is reluctant to order re-examinations, since it does not want to drag out the time frame for the proceedings, it refuses to listen to the arguments of the party to the case or its representative about alleged violations of methods, etc., in the course of the forensic examination. In the established practice, the party submits a petition for the appointment of a re-examination and indicates all the identified shortcomings of the examination in it or in the attached objection to the forensic examination. In this situation, it is not difficult for the court to refuse to satisfy such a petition, referring to the fact that the expert’s opinion was obtained within the procedural framework, the expert’s competence was confirmed and the latter was warned of criminal liability for giving a knowingly false opinion.

The fact of providing a review allows you to convince the court to grant this petition. Since it is extremely difficult for the person who appointed the examination to turn a blind eye to the flagrant violations that take place in the expert's opinion, and which are reflected not by a lawyer, but by another person with special knowledge. Thus, the court is aware that not paying due attention to this review and making a decision based on the conclusions of the disputed expert opinion, it is more likely to result in the cancellation of such a decision in the court of appeal.

In order to prevent the court from attaching a review to the case file, it must necessarily be submitted as an annex to the application for the appointment of a re-examination. And the review itself, in this case, is a motivated justification for the request for a re-examination.

The review is provided as the conclusion of a specialist who does notdeals with the assessment of the expert's opinion as evidence in the case, since this is the prerogative of the court, and analyzes the expert's opinion in terms of its scientific and methodological validity, compliance with the recommendations developed by the general theory of forensic examination, compliance with the requirements of the legislation governing forensic activities. And let's deliberately repeat that From the point of view of procedural law, the reviewer acts as a specialist - a person with special knowledge, involved in the proceedings in the prescribed manner, to assist in the detection, fixing and seizure of objects and documents, the use of technical means in the study of criminal case materials, for setting questions to the expert, as well as to explain to the parties and the court issues within his professional competence (Article 188 of the Code of Civil Procedure of the Russian Federation; Article 58 of the Criminal Code of the Russian Federation; Article 55.1 of the Arbitration Procedure Code of the Russian Federation).

It should be noted that more and more often the courts resort to the service of the SRO and appoint examinations on the judicial opinions of experts (reviews). The following questions may be asked:

1) Was the research methodology chosen and applied correctly, was the research carried out in full?

2) Is the expert competent in the field of forensic examinations and research, does his education correspond to the type of examination that he conducted?

3) Does the expert opinion comply with the procedural norms, both in form, in its content, and in terms of compliance with the procedure for obtaining research objects, their description, organization of the inspection, as well as the reflection of these facts and circumstances in the expert opinion.

There are also other questions that are put to the reviewer's permission. There are facts when, during an audit by law enforcement agencies in relation to a forensic expert, upon the fact of preparing an opinion by him, the investigator or other responsible person appoints an examination for an expert opinion (review) in LLC « » .

At the same time, I would like to note once again that the very fact of producing a review is not a process in which the goal of preparing a negative review is achieved. For a more complete understanding of the essence of the review, it is worth remembering the reviews that are carried out in the structures of state expert institutions for expert opinions (certificates of specialists) and which are produced by trainees in order to obtain admission to the right to independently produce a particular type of expertise.

Submitting a review to the court is an important detail.

The petition must summarize all the violations and other issues referred to by the reviewer. If the judge or other procedural person refuses to satisfy such a reasoned petition, this will allow using this fact when such a decision is appealed. The court is obliged to motivate the reason in connection with which it did not accept the arguments presented and this is an opportunity for discussion when considering the case in the following instances. However, in order for everything to turn out as planned, it is better to attach the petition to the case file by submitting it through the office well in advance of the court session.

According to the statistics of the Self-Regulatory Organization of Forensic Experts, more than 75% of peer-reviewed expert opinions receive a negative review with the following conclusion: “ The expert opinion must contain exhaustive answers to the questions posed, must be comprehensive, thorough, and carried out within the competence of the experts, on a strictly scientific and practical basis, using modern achievements in science and technology, however, the study, the results of which are set out in the reviewed Conclusion, is not complete , comprehensive and objective, which is contrary to the requirements of the Federal Law "On State Forensic Activities in the Russian Federation" dated 31.05.2001. №73-FZ". In such cases, there are sufficiently strong grounds for the appointment of a re-examination. This is stated in the Review of judicial practice on the application of legislation governing the appointment and conduct of an examination in civil cases, approved by the Presidium of the Supreme Court of the Russian Federation on December 14, 2011: “ A re-examination (Article 87 of the Code of Civil Procedure of the Russian Federation, Article 20 of the Federal Law “On State Forensic Activities in the Russian Federation” dated May 31, 2001 No. 73-FZ) was mainly appointed in connection with the court’s doubts about the objectivity and validity of the expert opinion, for example, when the prices indicated in the conclusion of the appraisal examination differed significantly (which also takes place in the conclusion of the forensic expert 386-11-TsSE dated 11/20/14) ... or the procedure for conducting the examination was violated, in particular, in particular, a personal examination of the object of study was not carried out».

It would be wrong not to mention that in cases where the reviewed expert opinion does not have any violations, the reviewer prepares a positive review, which can also help one of the parties prove the validity of the examination and insist on the need to refuse to satisfy the application for appointment re-examination.

At the same time, as judicial practice shows, the production of only one review is not enough to achieve the set goals. The party to the case must draw the attention of the court to the review, since it is necessary that the court understand the arguments of the reviewer. Again, we repeat that it is extremely important to substantiate the petition, and for this, the party needs to independently delve into both the expert’s judicial opinion and the content of the review in order to explain to the court in an understandable form about the violations and shortcomings identified, of course, using the conclusions of the review.

Of course, the representative of the party, not in whose favor the conclusions of the expert's court opinion, should take care to familiarize themselves with the expert's opinion before the court holds the next court session. Since it is necessary to have time to realize the above described possibilities.

Who performs forensic reviews?

Unfortunately, by the time this article was written, Russia has not yet implemented legislation that would define the requirements for non-state expert institutions. However, such changes in the current legislation have been discussed for a long time. The same applies to institutions that produce reviews - any requirements for them, at the moment, are not provided. Only requirements for reviewers can be made. Of course, the reviewer (specialist) should have the right to independently produce the type of expertise that he reviews. There should be sufficient experience as an expert, and experience as a reviewer.

There is information on the Internet that review production services are provided by various expert institutions. It is worth noting that judges are extremely skeptical of some reviews due to the fact that they are carried out by specialists who work or are involved in non-state expert institutions. In this case, it turns out that the review is carried out by a specialist who works in a different expert institution than the expert who performed the examination, i.e., the review is carried out by a competitor. The Court considers this issue in the following way. The forensic examination was performed by a specialist whose competence does not raise doubts in the court, the expert was warned about criminal liability, the examination was performed as part of the process. And the review was made by another expert of another expert institution (competitor), whose competence the court did not evaluate and is not going to do so. The reviewer completed the review (opinion of a specialist) not within the framework of a trial and was not warned of criminal liability. We can say that in this situation, the court is somewhat right. After all, as they say: "How many experts, so many opinions!". But you cannot involve all the experts for a particular trial.

However, do not forget that there are other organizations. For example, which, by virtue of the current legislation, do not have the right to conduct forensic examinations (they are not competitors to the expert institution in which the forensic examination was carried out) and which are entrusted with the functions of exercising control in the field of forensic activities, since they are self-regulatory organizations. According to the Federal Law "On state forensic activities in the Russian Federation" dated May 31, 2001 No. No. 73-FZ, forensic activity is not an area that this special law falls under mandatory self-regulation. However, according to Federal Law-315, SROs are entrusted with the functions of control over the area of activity in which they carry out self-regulation. Even though LLC « Center for Independent Forensic Expertise» carries out self-regulation in the field of forensic activities, of course, it does not control the activities of all forensic experts, but by virtue of this law, it only controls the activities of SRO members. Nevertheless, the SRO has created and has all the necessary tools for this, such as peer review, which allows it to be used in assessing the quality of any forensic examinations.

A review is an opportunity to refute or question the conclusions of a forensic examination than to turn the tide of an investigation or trial.

Of course, there is much more to be written about peer review, but this is not necessary as the statistics speak for themselves. Of the several hundred reviews conducted in the SRO of forensic experts, made in order to substantiate petitions for the appointment of repeated examinations, in more than 80% of cases these petitions were granted by the court.

If you have any questions, write or call us. We will try to give comprehensive answers to all questions.

Is it possible to challenge the examination after the decision of the court? Such a question can be formed by anyone who is faced with litigation, but does not have proper information in this matter.

It is important to understand that if the judicial structure has issued a final verdict on the proceedings under consideration and all the established deadlines for appealing have expired, then the only way out will be to look for new circumstances. Only on this basis is it possible to legitimately demand an appeal against the SE.

What you need to do in order to challenge the results of a forensic examination in time:

If you do not agree with the expert conclusions (results), you must apply to the court for the appointment of repeated or additional examinations.
Order peer review of expert opinions issued by other experts or expert organizations.

Who is qualified to provide qualified assistance?

We recommend contacting our licensed independent expert company "Forensic Examination Center". Everyone can use our competent services throughout the territory of the Russian Federation.

Our priorities:

A team of only highly qualified experts and reviewers.
Sufficient accumulated experience in performing all types of forensic research and reviewing.
Reasonable prices and excellent discount system.
Compliance with all regulated laws and regulations.
Not violating deadlines.
Complete anonymity of the implementation of expert activities and the information received.

We fruitfully cooperate with many courts and law enforcement agencies. We are accustomed to trust our regular customers, because we never violate contractual obligations.

Answering the question - is it possible to challenge the examination after the court decision, we recommend the following actions:

Get qualified advice from our lawyers.
File a claim with the court structure for appealing the SE with the obligatory indication of all the necessary information (our experienced staff will help you with this).
Order from us a professional review of expert opinions.

It is important that the petition-petition for contestation be clearly motivated (reasonable). If you do not provide the court with accurate justifications, then it has the right to refuse satisfaction.

Forensic activities are among the important evidentiary arguments in the production of litigation. They are carried out only by highly qualified and competent experts. But, like every examination, it is possible to appeal against it. The main thing is to have the necessary information on how to do it.

If you need legal support, you do not understand the nuances of challenging the FE, then you have come to the right place, where you will be provided with comprehensive and versatile assistance. Write or call us. We are always ready to defend the interests of our clients.

The expert opinion is only one of the evidence along with the rest, so the person participating in the case can file an objection to the examination. Such an objection must be taken into account by the court when evaluating the expert's opinion in resolving issues relevant to this civil case.

The objection to the examination must be motivated, substantiated, prepared in writing for inclusion in the materials of the civil case. This will make it possible to objectively evaluate the available expert opinion and, possibly, create the prerequisites for filing or petitioning. It makes sense to decide whether to declare or to confirm the position of disagreement with the expert opinion.

Below is an example of an objection to examination. But since each objection is very individual, in case of difficulty, we recommend that you contact the site's duty lawyer. Qualified legal assistance will help draw the attention of the court to the objection to the examination.

An example of an objection to examination

To Andreapolsky District Court of the Tver Region

address: 172800, Andreapol,

st. Cosmonauts, 41, 16

within the framework of case No. 6-351/2022

Civil case No. 6-351/2022 is pending in the Andreapolsky District Court of the Tver Region on the claim of Kira Aleksandrovna Polishchuk on recognizing the contract for the sale of a motor vehicle as not concluded. In this case, I am the Respondent.

In accordance with the petition of the Respondent, within the framework of a civil case, . the examination was entrusted to LLC "BusinessEvaluation", Andreapol, st. Svetlaya, 14, of. 51.

On April 21, 2022, a conclusion of a handwriting examination was received, according to which the signature in the relevant columns of the sales contract, the preliminary contract and the receipt for the receipt of funds was made not by the plaintiff, but by another person.

I do not agree with the conclusion presented based on the results of the examination, I believe this evidence is not admissible and not subject to consideration when making a court decision on the civil case under consideration.

Effective handwriting examination is impossible without high-quality preparation of materials for the expert. In accordance with the petition to involve a specialist, 10 free signature samples, as well as conditionally free and experimental samples were received at the court session. An additional 5 documents containing free samples of the plaintiff's signature and handwriting were also attached to the ruling on the appointment of an expert examination.

In violation of the established procedure for the examination, comparison of the signature on behalf of Polishchuk K.A. produced with only 2 (two) free samples out of 10 (ten); no comparison was made of the signature under study with the attached documents containing free samples of the plaintiff's signature, as well as with conditionally free and experimental samples of her signature.

The expert's conclusion is based on the study of not all the submitted materials of the case, which is a violation of the principle of objectivity and comprehensiveness, therefore, the expert's conclusion is inadmissible evidence and cannot be assessed by the court as evidence in the case.

Based on the above, guided by art. 35, 86 Code of Civil Procedure of the Russian Federation,

Attach these objections for examination to the materials of civil case No. 6-351/2022.
To consider the expert opinion dated April 21, 2022 as unreliable and unacceptable.

04/28/2022 Burundukov I.E.

How to make an objection to the examination

So, in order to draw up objections to the examination, the applicant can assess:

compliance with the procedural order of appointment and examination;
conformity of the conclusion of the examination to the assignment (determination of the court on the appointment);
qualification and competence of the expert;
scientific validity of the conclusion;
completeness of the conclusion;
compatibility with other evidence in the case.

In addition to bringing an objection to the examination, the party has the right to submit or re-submit.

Quite often, for one of the parties to a construction contract, the conclusion of a forensic examination becomes the main argument in court to protect their rights. Although in a lawsuit the opinion on the construction and technical expertise is just one of many pieces of evidence along with others. In this article, we will tell you a case from our practice and give advice on how to appeal a forensic examination.

Appointment of a forensic examination

In most cases, the subject of litigation is the dispute between the parties to the litigation on the issues of determining the quality, cost of work, volume of services performed under a construction contract. To determine the essence of the case, the court, as a rule, appoints a construction and technical expertise and writes out a definition for it, which indicates the timing of the expertise, the expert organization and the questions that the expert must answer.

It should be noted that according to Article 79 of the Code of Civil Procedure of the Russian Federation, where if one of the parties evades participation in the examination, fails to provide the experts with the necessary materials or documents for examination, the court reserves the right to recognize the examination to the other side of the case.

Questions put to the expert

When appointing an expert examination, the court is obliged to grant the right to the parties involved in the civil case to introduce issues to be considered during the examination.
The judge must motivate the rejection of the questions of the participants in the process.
The final range of issues where an expert opinion is required is mainly determined by the court.

Forensic Appeal Options

In case of disagreement with the appointment of a construction and technical expertise, one of the parties may file a private complaint against the determinations on the appointment of an expertise or the expert’s opinion regarding the construction and technical expertise, but there are procedural deadlines for filing during which you must meet.
The next option is on procedural aspects, that is, certain errors in the conduct of a construction and technical expertise by an expert.
Filing an objection to the expert's conclusions or filing a petition to summon an expert to court to answer questions regarding the examination, in accordance with Article 85 of the Code of Civil Procedure of the Russian Federation. This law states that the expert is obliged to appear in court if one of the parties to the civil process so requires. If the expert refuses to appear in court, in this case it will be possible to file a motion on the inadmissibility of evidence, or it is best to present an opinion of a specialist containing different conclusions or bring it to court.
The next option is to recognize the examination as insufficiently clear or incomplete and to petition the court for the appointment of a second or additional examination. But the court has the right to appoint them only if there are certain grounds for this, such as: insufficient clarity of the expert opinion, incompleteness of the expert study, the presence of inaccuracies in the opinion, if, when summoned to court, the expert did not answer certain questions of the court and the parties to the case, if other questions arose and etc.
And of course the last option is only through an appeal. Although there will be little chance if you have not used all the procedural rights listed above.

Nevertheless, it is worth noting that according to civil law, an expert opinion is considered one of the evidence, but according to judicial practice, it is decisive in a trial.

Judicial proof is the procedural activity of the court and the parties to establish the factual circumstances of the case. After the court, with the help of the persons participating in the case, has formed the subject of proof, the parties have fulfilled the burden of asserting certain facts (onus preferendi), the court, taking into account the provisions of the law, has distributed the burden of proof between the parties (onus probandi), the stage of presenting evidence in the case follows. and their research.

Expert opinion in the system of forensic evidence

The proof in relation to the established circumstance acts as a trace left by the sought fact. By virtue of the principle of immediacy, the court must personally perceive, examine any evidence (part 1 of article 10 of the Arbitration Procedure Code of the Russian Federation; hereinafter - the APC of the Russian Federation). For this reason, original evidence takes precedence over derivative evidence, and direct evidence over indirect evidence. However, in a number of cases, the court cannot directly establish the actual circumstances of the case without the help of a knowledgeable person with special knowledge. According to A.A. Eisman, special knowledge does not belong to the well-known, publicly available, mass distribution, that is, it is the knowledge that only a narrow circle of specialists professionally owns. In these cases, the procedural law makes an exception from the principle of immediacy of judicial knowledge - a forensic examination is appointed. Expertise in itself is not evidence, it is a way of studying factual information in order to obtain evidence - an expert opinion. Eisman A.A. Expert opinion. M., 1967. S. 91. Resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation (hereinafter referred to as the Supreme Arbitration Court of the Russian Federation) of March 27, 2012 N 12888/11, of July 27, 2011 N 2918/11. According to D.V. Goncharova and I.V. Reshetnikova, the expert opinion can be equally attributed to both personal (because a specific person - an expert conducts a study and draws up a conclusion) and physical evidence (because the result of the study materializes in the form of a written opinion). Judicial examination in the arbitration process / Ed. D.V. Goncharova, I.V. Reshetnikova. M., 2007. We believe that an expert opinion is a personal evidence, since the evidentiary value is not so much information about the facts being sought, revealed by the expert, but the conclusions that, using their special knowledge, the expert makes about these facts. The written form of the conclusion is nothing more than a form of expressing these conclusions outside, although it has an important procedural significance. In Russian courts, personal evidence, such as the parties' explanations and the testimony of witnesses, has traditionally not enjoyed much credibility. The exception, of course, is the conclusion of a forensic expert. This is explained not only by the fact that the expert is warned of criminal liability for giving a knowingly false opinion (the witness is warned about the same), but also by the special procedural position of the expert, whom the court, apparently, perceives as a figure close to himself in status. Like the court (and, let us also note, lawyers specializing in judicial representation), an expert, unlike all other participants in the process, carries out his activities on a professional basis and, therefore, must value his reputation. The special procedural status of a forensic expert is confirmed by the provisions of Part 2 of Article 86 of the Civil Procedure Code of the Russian Federation (hereinafter referred to as the Code of Civil Procedure of the Russian Federation), according to which, if the expert, during the examination, establishes circumstances that are important for the consideration and resolution of the case, about which he was not given questions, he has the right to include conclusions about these circumstances in his opinion. In other words, the expert, not being a person participating in the case, is empowered, along with the court, to participate in determining the subject of proof, which, in our opinion, is redundant, since, as shown below, the expert is not entitled to give a legal qualification to the circumstances of the case. Separately, we note that part 3 of Article 79 of the Code of Civil Procedure of the Russian Federation contains a provision according to which, if a party evades participation in the examination, fails to provide the experts with the necessary materials and documents for examination, and in other cases, if due to the circumstances of the case and without the participation of this party, it is impossible to conduct an examination, the court, depending on which party evades the examination, and also what significance it has for it, has the right to recognize the fact, for the clarification of which the examination was appointed, as established or refuted. This provision was introduced into the Code of Civil Procedure by Federal Law No. 189-FZ of November 30, 1995 "On Amendments and Additions to the CPC of the RSFSR". This rule contains a presumption of the existence or absence of a fact, for the establishment of which an examination is appointed, depending on the behavior of the party. (Note that a similar presumption is laid down in Part 1 of Article 68 of the Code of Civil Procedure of the Russian Federation, according to which, if the party obliged to prove its claims or objections retains the evidence it has and does not present them to the court, the court has the right to substantiate its conclusions with explanations from the other party. - Approx. Aut.) There is no such rule in the arbitration process, however, since Part 6 of Article 13 of the Arbitration Procedure Code of the Russian Federation allows the application of the rules of law governing similar relations (an analogy of the law), then the provisions of Part 3 of Article 79 of the Code of Civil Procedure of the Russian Federation, we believe, can be applied in the manner analogies of the procedural law and in arbitration disputes. In the Ruling of the Constitutional Court of the Russian Federation dated 09. 04.2002 N 90-O expressly states that the possibility of applying by the court in the event of a party evading participation in the examination of the legal presumption of recognizing a fact unfavorable for it is due to the task of suppressing the actions (inaction) of the unfair party that impede the administration of justice and provide further judicial procedures to establish and investigate the actual circumstances affairs. In the civil (arbitration) process, the presumption "the court knows the law" operates. Therefore, on legal issues - for example, the presence and form of guilt of one of the participants in the dispute, the presence or absence of a legally significant causal relationship between the offense and the damages caused, the citizen’s legal capacity, and not the nature of his disease, etc. - Expertise can not be appointed. These issues relate to the sphere of legal qualification of certain circumstances, which is the prerogative of the court. Experts are "witnesses of the fact". The expert opinion is always connected with other evidence in the case, as it is the result of their special study. Despite this, the expert opinion refers to the initial, and not to the derivative evidence, since the expert does not simply reproduce the facts, but analyzes them on the basis of special knowledge, providing the court with his conclusions - primary information about the facts. These features of the expert opinion, coupled with the form of the expert's conclusions (categorical or probable), determine its probative value. Note that if the object of forensic examination is a written document in respect of which a statement of falsification was made, then only the original should be presented to the expert. In accordance with paragraph 10 of the Decree of the Plenum of the Supreme Arbitration Court of the Russian Federation of December 20, 2006 N 66 "On Certain Issues in the Practice of Application by Arbitration Courts of Legislation on Expertise" (hereinafter referred to as Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation N 66), duly certified copies of the relevant documents are provided to the expert by virtue of the provisions of part 6 of the article 71 and part 8 of article 75 of the Arbitration Procedure Code of the Russian Federation only if the object of study is not the document itself, but the information contained in it. As the Presidium of the Supreme Arbitration Court of the Russian Federation pointed out in one of the cases, if it is impossible to conduct an examination due to the absence in the case file of the original document disputed on the grounds of forgery, it, as judicial evidence, does not meet the requirements of admissibility and reliability. See: Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 6, 2012 N 14548/11.

Grounds for contesting a forensic expert opinion

As evidence, the expert's opinion is examined along with other evidence in the case (Part 3 of Article 86 of the Arbitration Procedure Code of the Russian Federation). From the point of view of the law, no evidence (including an expert opinion) has a predetermined force, does not have an advantage over other evidence (Part 2 of Article 67 of the Civil Procedure Code of the Russian Federation and Part 5 of Article 71 of the APC of the Russian Federation). Moreover, in accordance with Part 3 of Article 86 of the Code of Civil Procedure of the Russian Federation, the opinion of an expert is not mandatory for the court and is evaluated by the court according to the rules established in Article 67 of the Code of Civil Procedure of the Russian Federation, that is, along with other evidence. According to paragraph 7 of the Decree of the Plenum of the Supreme Court of the Russian Federation (hereinafter referred to as the Supreme Court of the Russian Federation) dated December 19, 2003 N 23 "On the Judgment", the courts should keep in mind that the expert's opinion, as well as other evidence in the case, is not an exclusive means of proof and must be assessed in conjunction with all the evidence available in the case. However, the assessment of the expert opinion has its own specifics. Evaluation of evidence is the quintessence of justice, something for which the whole trial is started. The court evaluates the reliability of the expert's conclusions, as well as the reliability of any evidence available in the case, solely on its own inner conviction. The internal conviction of any judge is formed, among other things, on the basis of his life experience (including work experience that preceded his judicial career), as well as common sense. According to M.Z. Schwartz, before the court evaluates the evidence and establishes the facts on their basis, he does not have any knowledge of reality, for compliance with which, as the legislator established in part 3 of article 71 of the Arbitration Procedure Code of the Russian Federation, it would be possible to check the evidence, as a result of which the recognition of evidence as reliable means otherwise - that it is worthy of the court's confidence, that is, it is recognized as capable of serving as a means of forming the court's knowledge of the circumstances of the case. And precisely because credibility is established on the basis of a free but motivated evaluation of evidence, it cannot be determined through correspondence with reality. Moreover, the well-known problem of the nature of the truth established by the court (objective or formal) lies precisely in the fact that what was established by the court in the decision will be considered to have taken place in reality. Schwartz M.Z. On the issue of falsification of evidence in the arbitration process // Arbitration disputes. 2010. N 3. S. 85. Due to the fact that judicial proof, in addition to its external - procedural side, also has an internal side - the mental, epistemological activity of a particular judge, in reality, an expert opinion obtained in the framework of a court case with the help of "qualified witness of fact" (as an expert is sometimes called) can be (and usually is) decisive in the eyes of the court. This is due to the fact that in practice the court and the parties, when assessing the expert opinion for its reliability, experience serious difficulties, since the court, which does not have special knowledge in the disputed area, has no other tool than internal conviction. For example, Article 8 of the Federal Law of May 31, 2001 N 73-FZ "On State Forensic Activities in the Russian Federation" (hereinafter - Law N 73-FZ) prescribes that the expert's opinion be based on provisions that make it possible to verify the validity and reliability of the conclusions based on generally accepted scientific and practical data. However, it is problematic to establish the reliability of the conclusions made by a knowledgeable person on the basis of his special knowledge, to the court, which does not possess such special knowledge. It will be difficult for the court to assess whether the expert was provided with appropriate and sufficient materials for the study, whether the study was carried out with the necessary completeness, whether it is based on the application of modern scientific knowledge, whether the choice of one or another research method is justified. Obviously, without the help of another knowledgeable person (expert or specialist) with the necessary special knowledge, it is not possible for the court to carry out such a check. Often, the courts solve this problem by referring to the mandatory warning of a forensic expert about criminal liability for giving a knowingly false opinion. In their opinion, the expert who signed the opinion is also responsible for the reliability of the conclusions contained in it, which, despite the direct indication of the law and the explanations of the highest judicial instances, gives the expert opinion a priori reliability in the eyes of the court. In view of the foregoing, as well as the fact that most forensic examinations are carried out by non-state experts, to whom the requirements of Law N 73-FZ apply only in part, in the event of an expert’s incompetence or dishonesty, which, unfortunately, is often found in our legal reality, we risk receive an unjust decision based on an unreliable expert opinion. Two factors are decisive for establishing the objective truth in a case under such circumstances: strict observance of the procedural order for appointing and conducting a forensic examination and active procedural behavior (in the literal sense of the word competition) of the disputing parties. The purpose of the procedural form is that it is a system of guarantees of confidence in the court. It is the observance of the procedural form that makes the judicial decision a special, unique act of power law enforcement. We believe that the procedural law gives both the court and the parties enough opportunities to achieve true knowledge of the circumstances of the dispute. T.V. Sakhnova points out that the expert's conclusion is a unity of factual data (the conclusions of the expert contained in it) and the form of their expression outside (conformity of the conclusion to the requirements of the procedural law). At the same time, both form and content are equally important in determining the probative value of an expert opinion. Sakhnova T.V. Expertise in civil court. M., 1997. S. 59 - 60. The procedural codes and the Law N 73-FZ present a number of mandatory requirements for the conduct of a forensic examination, the candidacy of an expert and the content of the conclusion itself:

observance of the procedural procedure for the appointment of an examination;
compliance with the procedural order of the examination;
requirements for the qualification (competence) of an expert;
requirements for ensuring the objectivity and impartiality of the expert;
requirements for the content of an expert opinion, in particular, the opinion must contain information about the expert’s warning about criminal liability for giving a knowingly false opinion, and the expert’s conclusions should not contradict other parts of the opinion, for example, its research part.

When appointing an expert examination in court, the parties to the dispute have certain procedural rights (Part 2 of Article 79 of the Code of Civil Procedure of the Russian Federation, Part 3 of Article 82 of the APC of the Russian Federation), the main ones are: the right to submit to the arbitration court questions that should be clarified during the examination (with a deviation questions submitted by persons participating in the case, the court is obliged to motivate); the right to apply for the involvement as experts of the persons indicated by them or for the conduct of an examination in a specific expert institution; the right to challenge the expert; to ask the expert questions in the court session, both on the methodology of the examination, and on the conclusions that are set out in the conclusion. In particular, the Plenum of the Supreme Arbitration Court of the Russian Federation in Resolution N 66 indicated that if the examination is to be carried out in a forensic institution, in order to ensure that the persons participating in the case exercise their right to challenge an expert (), as well as the right to file a petition for involvement as experts of the persons indicated by them (Part 3 of Article 82 of the Arbitration Procedure Code of the Russian Federation), in the ruling on the appointment of an examination, the court indicates, in addition to the name of the institution, also the last name, first name, patronymic of the forensic expert who will be entrusted with the examination by the head of the forensic institution. See: Resolution of the Federal Arbitration Court of the North-Western District (hereinafter referred to as the FAS SZO) dated 10/19/2011 in case N A56-1085 / 2009. The importance judicial practice attaches to the observance of the procedural rights of the parties when appointing an examination in court can be seen from paragraph 9 of the same Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation N 66, according to which an expert’s opinion on the results of a forensic examination appointed when considering another court case cannot be recognized as an expert opinion on the case under consideration. Such a conclusion may be recognized by an arbitration court as another document admitted as evidence in accordance with Article 89 of the Arbitration Procedure Code of the Russian Federation. (The very wording of paragraph 9 of the Resolution contains a hidden message about the greater reliability of the forensic examination conducted directly in the framework of the court case with the participation of the disputing parties. - Note by the author) We believe that such conclusions, as well as the conclusion of a non-forensic expert, should be considered in the process as written evidence and be subject to the regime of discovery, examination and evaluation established for written evidence. See: Decree of the FAS SZO of 06/01/2011 in case N A56-19791 / 2010. The procedural form of conducting a forensic examination acts as a guarantee of obtaining reliable evidence - an expert opinion. For example, if neither the court nor other persons participating in the case were familiarized with the documents and materials that were presented by one of the parties to the expert for examination, this is a gross violation of the procedural rules for conducting a forensic examination. See: Determination of the Supreme Arbitration Court of the Russian Federation of June 14, 2011 N VAS-6963/11, Resolution of the FAS SZO of October 7, 2011 in case N A56-44359/2008. Accordingly, the facts of violation of the procedural rights of the participants in the trial during the appointment and production of a forensic examination, which influenced or could affect the content of the experts' conclusions, are the first reason to challenge the expert opinion. When conducting an expert examination in court, an expert may perform only those procedural actions that are expressly provided for by law. In particular, the expert is not entitled to: accept orders for the conduct of a forensic examination directly from any bodies or persons, with the exception of the head of the forensic institution; independently, especially through contacts with persons participating in the case, to collect materials for the production of a forensic examination; inform anyone about the results of the examination, in addition to the court; without the consent of the body or person who appointed the forensic examination, to involve in its conduct persons who were not entrusted with its production (Articles 14 - 16 of Law N 73-FZ). The most common violations in judicial practice are the independent collection of materials by an expert and the involvement in the examination of persons to whom it was not entrusted by the court. The performance by an expert of actions that cast doubt on his objectivity and impartiality is the second reason for challenging the expert opinion. It may subsequently be recognized as inadmissible evidence in the case. Article 13 of Law N 73-FZ imposes certain requirements on the level of expert qualification. As the Presidium of the Supreme Arbitration Court of the Russian Federation pointed out, the questions posed to the expert and the conclusion on them cannot go beyond the limits of his special knowledge. Otherwise, the expert should refuse to give an opinion on the grounds that he does not have the necessary knowledge to perform the duties assigned to him. See: Decree of the Presidium of the Supreme Arbitration Court of the Russian Federation of December 4, 2012 N 10518/12. The competence of an expert is assessed both when deciding on the appointment of a knowledgeable person as a forensic expert, and when evaluating the expert opinion by the court and the parties. For example, in accordance with paragraph 3 of part 2 of article 70 of the Code of Criminal Procedure of the Russian Federation, insufficient competence or lack thereof is the basis for the removal of an expert. In other procedural codes, there is no provision on the removal of an expert on the grounds of his incompetence. However, apparently, the provisions of the Code of Criminal Procedure of the Russian Federation can be applied by analogy with law (Part 4 of Article 1 of the Code of Civil Procedure of the Russian Federation) and in resolving civil disputes. Since the competence of an expert is of great importance for assessing the reliability of his opinion, the inconsistency of the expert's qualifications with the tasks of the examination is the third reason for challenging the expert opinion. According to the certainty of the conclusions, categorical and probable (probable) expert opinions are distinguished. A categorical conclusion is a reliable conclusion about a fact, regardless of the conditions of its existence. A categorical conclusion is based on the expert's conviction that his conclusions are true, unambiguous and do not allow any other interpretation. If the expert finds no grounds for a categorical conclusion, his conclusions are probable. A probable conclusion is a substantiated assumption (hypothesis) of an expert about an established fact. Probable conclusions admit the possibility of the existence of a fact, but they do not exclude a completely different (opposite) conclusion. The expert himself can indicate in the conclusion a high degree of probability of his conclusions. In relation to the established fact, a categorical or probable conclusion can be affirmative (positive) or negative, when the existence of a fact is denied, about which a certain question is posed to the expert. The literature also distinguishes conditional conclusions, which means the recognition of a fact depending on certain circumstances, the proof of other facts, and alternative conclusions, which assume the existence of any of the mutually exclusive facts listed in them, when all alternatives are named without exception, each of which must exclude others - and then from the falsity of the one one can logically come to the truth of the other, from the truth of the first to the falsity of the second. For example, "signatures on behalf of Gorbachev and Skvortsov in the loan agreement, provided that it is stored at normal temperature and air humidity, were made for more than six months, counting from the beginning of the study, that is, earlier than September 2011, and may both correspond to the date indicated in the agreement as March 1, 2008, and do not comply with it "(Determination of the Judicial Collegium for Civil Cases of the Armed Forces of the Russian Federation of May 14, 2013 N 5-KG13-33). The probative value of an expert's opinion is determined by the form of his conclusions. According to M.K. Treushnikov, E.R. Rossinskaya, E.I. Galyashin, only the categorical conclusions of an expert can be used as the basis for a court decision in a case, only they have evidentiary value. An expert opinion with categorical conclusions (positive or negative) is direct evidence. All other types of expert opinion - with varying degrees of probability, alternative, conditional - refer to circumstantial evidence and, as a rule, allow you to get only orienting information, suggest versions that need to be verified, for example, serve as the basis for appointing a commission, comprehensive or repeated examination . Treushnikov M.K. Forensic evidence. M., 1999. S. 264; Rossinskaya E.R., Galyashina E.I. Handbook of a Judge: Forensic Science. M., 2011. For example, in one case, an association of homeowners filed a lawsuit against the developer organization to recover the costs of eliminating shortcomings in the construction of a residential apartment building in the amount of 50,031,844 rubles. The claim was satisfied, while the courts of the first and appeal instances referred to the expert opinion obtained in the framework of the litigation, according to which construction defects are the result of uneven settlement of the building. Possible reasons for the uneven settlement of the building, according to the expert, may be a deviation from the design decisions and violation of building codes and regulations during the construction work on the foundation or decompaction of soils and foundations, as well as a combination of these factors. The expert pointed out that in order to determine the cause of uneven settlement of the building, as a result of which cracks formed, it is necessary to conduct a detailed instrumental examination of soils and foundations, as well as foundations by a specialized organization. The decision and resolution of the courts of first and appeal instances were canceled by the Decree of the FAS SZO, and the case was sent for a new trial, while the cassation court indicated that the reasons for the uneven settlement of the building were not reliably determined, since the expert expressed only probable reasons. Decree of the FAS SZO dated 11/13/2013 in case N A56-32378 / 2012. The probable (probable) nature of the expert's conclusions about the circumstances of the case is the fourth reason for challenging the expert opinion. The final stage in the analysis of the expert's opinion is its assessment and comparison with other evidence in the case in the aggregate (Article 71 of the Arbitration Procedure Code of the Russian Federation). This rule means that the appearance in a court case of even one new evidence should lead to a reassessment of the entire body of evidence, including the expert's opinion (the above, of course, does not mean that the court will necessarily come to the opposite conclusions). The contradiction of the expert's conclusions with other evidence available in the case, in particular the conclusion of an extrajudicial expert (specialist), is the fifth reason for challenging the expert opinion.

Procedural ways to challenge an expert opinion

There is no special procedural procedure for refuting the credibility of an expert's opinion. The parties have the right to refute the authenticity of any evidence presented by the other party with the totality of the evidence available in the case. And here the decisive role will be played by the procedural activity of the warring parties, who have the right to point out to the court the contradictions and shortcomings in the expert opinion by any means provided for by the procedural law. According to Part 2 of Article 9 of the Arbitration Procedure Code of the Russian Federation, the persons participating in the case bear the risk of the consequences of the commission or non-commission of procedural actions by them. As judicial practice shows, if a party disputes an expert opinion only by referring to a violation of its procedural rights, or to the expert’s incompetence, or to the probable nature of his conclusions, etc., this is due to the above reasons, in particular, the special attitude of judges to an expert conclusion as forensic evidence is clearly not enough. It is necessary to actively use your procedural rights and seek the court to call and interrogate the expert who conducted the study, obtain explanations from another specialist with special knowledge, appoint an additional or repeated examination, and the repeated examination, depending on the specific circumstances of the case, may be commission or complex. . At the very least, such a petition must be made in the court of first instance. Even if it is rejected by the court, the very fact of his statement, by virtue of part 2 of article 268 of the Arbitration Procedure Code of the Russian Federation, gives the right to make such a petition again when the case is re-examined already in the appellate instance. In case of disagreement with the conclusions of the expert, the court has the right to appoint an additional or repeated expert examination or to decide the case on the merits on the basis of other evidence, if they together allow to draw a true conclusion about the actual circumstances of the case. In the latter case, the court must give convincing arguments in the reasoning part of the decision, according to which it rejects the expert's opinion and resolves the case on the merits without appointing a re-examination. However, it is quite difficult to fulfill the last rule in practice, since an expert opinion is a source of new factual data that cannot be obtained by other procedural means. The results of the re-examination conducted by another expert must be assessed by the court as independent evidence, and not as a revision of the results of the primary examination. In one of the cases, the Presidium of the Supreme Arbitration Court of the Russian Federation pointed out that the court was unlawfully guided by the conclusion of the forensic examination only on the grounds that it was not refuted in the prescribed manner by appointing a repeated or additional examination. Noting the erroneousness of such an approach, the Presidium explained that, by virtue of part 3 of article 86 of the Arbitration Procedure Code of the Russian Federation, the court had to examine the substance of the expert opinion as one of the evidence in the case. Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation of March 29, 2005 N 14076/04. The conclusion of the repeated examination will not have any procedural priority over the conclusion of the initial one, and the conclusion of the commission examination carried out by several experts over the conclusion of one expert. Their probative value, ceteris paribus, will be determined by the degree of probability of expert conclusions, validity, absence of contradictions in the conclusions of experts, etc. . Decree of the Presidium of the Armed Forces of the Russian Federation of 05.06.2013 N 9-PV12. Thus, the procedural ways of refuting an expert opinion are:

summoning an expert to court and obtaining his explanations on the submitted conclusion;
contesting the reliability of an expert opinion by presenting a conclusion of a specialist (expert) containing other conclusions;
challenging the reliability of the conclusion by pointing out the contradiction of the conclusions with other parts of the conclusion, for example, the research part;
contesting the reliability of the expert opinion by pointing out its contradiction with other evidence available in the case;
statement of a petition for the appointment of an additional or repeated examination, including with reference to a violation of procedural rights.

Of course, the court will appoint an additional or repeated examination only if there are appropriate grounds for this. The grounds for appointing an additional examination are the lack of clarity or incompleteness of the expert study (when not all objects were submitted for examination, not all questions raised were resolved); the presence of inaccuracies in the conclusion and the impossibility of eliminating them by questioning an expert in a court session; if, when summoned to court, the expert did not answer all the questions of the court and the parties; if new questions have arisen regarding previously investigated circumstances (for example, in the event of an incorrect establishment of circumstances relevant to the case, or when such circumstances are clarified in connection with a change in claims). Additional expertise is entrusted to the same expert. Clause 13 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 21, 2010 N 28 "On forensic examination in criminal cases." The grounds for appointing a re-examination are insufficient qualifications of the expert (the examination was carried out by an incompetent person); probable (presumptive) nature of the expert's conclusions; the presence of contradictions in its conclusions or the conclusions of the commission of experts; groundlessness of these conclusions; if the conclusions of the expert contradict other parts of the conclusion, for example, its research part; if the expert's conclusion contradicts other evidence in the case, including the conclusion of an extrajudicial expert (specialist); if there is evidence of direct or indirect dependence or interest of the expert on the parties (for example, the expert was previously dependent on one of the parties, or the expert previously worked in the same institution with a representative of one of the parties). Clause 15 of the Decree of the Plenum of the Supreme Court of the Russian Federation of December 21, 2010 N 28 "On forensic examination in criminal cases". The re-examination is entrusted to another expert. In the application for the appointment of a re-examination, it is advisable to name the specific person that the applicant asks to involve as an expert, indicating information about his education, specialty, position, place of work, total experience of expert work, as well as by these types of examinations, scientific works, academic degree ( if available), etc. Finally, one of the ways to weaken an unfavorable expert opinion may be to clarify the legal position of one of the parties. For example, in one case, a contractor filed a claim against a customer for the recovery of debt for work performed under a construction contract. Since the defendant (customer) insisted on the presence of marriage in the results of the work, a forensic construction examination was appointed in the court of first instance, before which the question was raised about the cost of work to eliminate the marriage. As follows from the expert opinion, the cost of work to eliminate the marriage will be 1 million rubles. The Court of First Instance granted the claim minus this amount. Challenging this conclusion in the court of appeal, the customer demanded to appoint a different examination in the case, referring to, according to which he is obliged to pay for the work only on condition that they are performed properly. Taking into account this norm, the customer demanded to put another question before the expert: what is the cost of work performed with marriage? Naturally, taking into account the change in the object of the expert study, the figures turned out to be different - according to the conclusion, the cost of work performed with marriage amounted to 5 million rubles. It was by this amount that the court ultimately reduced the debt to be collected from the customer. In view of the foregoing, the success of the interested party in challenging the unfavorable conclusion of the forensic expert, if it, as evidence, does not meet the requirements of admissibility and reliability, is determined primarily by a thorough analysis of the circumstances of the case, active procedural behavior with reference to the above procedural grounds and documents, and, of course, the qualifications of judicial lawyers-representatives. The consequences of procedural passivity are not only the risks of losing a particular case, but also, by virtue of the rule of prejudice of judicial acts that have entered into legal force, as well as the ban on the presentation of identical claims (taking into account the fact that claims are individualized by actual circumstances, but not by the legal norm) ), ultimately - the risk of losing the entire dispute (loss of rights in a commercial project).

Epatko M.Yu., Managing Partner of the St. Petersburg Bar Association "Dernburg".