EU Project Pravo-Justice Held the Round Table on Practical Issues of Legal Liability of Forensic Experts

On July 19, the EU Project Pravo-Justice held the round table: “Legal Liability of Forensic Experts: Key Practical Issues.” The speakers and participants to the event were representatives of the Ministry of Justice of Ukraine, forensic experts from the institutions subordinate to the Ministry of Justice of Ukraine, representatives of MoI, SSU, Ministry of Health, the State Border Guard Service, and national experts of the EU Project Pravo-Justice, as well as private forensic experts. At the round table, the participants discussed the most urgent issues and practical problems related to liability of forensic experts, alongside possible ways to improve legislation and law enforcement in this area.

“A forensic expert is expected to carry out the examination within the framework of his/her professional qualifications; provide an objective and clear opinion; be free from any influence of third parties; and not to have a conflict of interest – there are quite a lot of requirements, as one may notice. One of the ways to ensure compliance with these requirements is to envisage legal liability. At the round table, we would want to hear the opinions of forensic experts as to the practical problems that arise in the framework of disciplinary, civil, administrative, or criminal procedure and to discuss the necessary steps for the statutory improvement of the institute of legal liability of forensic experts,” said Iryna Zharonkina, Lead of Property Rights and Enforcement Component, EU Project Pravo-Justice, when addressing to the participants to the round table.

Oleksandr Banchuk, Deputy Minister of Justice of Ukraine, spoke about the legislative developments of the Ministry of Justice regarding the regulation of the legal liability of experts. He noted that it was important for the Ministry of Justice to have the opinion of the professional community of forensic experts as to the practical gaps in the application of Law No. 2716, which entered into force on January 1, 2023. Deputy Minister Banchuk also spoke about the key novelties of draft law No. 6284 “On Forensic Expertise”, which the Verkhovna Rada of Ukraine is expected to consider in the first reading.

The Government’s draft law No. 6284 provides for the detailed regulation of the disciplinary procedure and the creation of a unified system of disciplinary bodies. We believe that a unified organizational system of disciplinary liability can guarantee the interests of justice; of the parties to the proceedings within which the examination is being conducted; and of the experts themselves,” said Oleksandr Banchuk.

For his part, Oleksandr Oliinyk, Director of the Directorate of Justice and Criminal Justice of the Ministry of Justice, called on forensic experts to unite efforts forces to speed up the adoption of draft law No. 6284 by the MPs.

“It took two years to the specialists of the Ministry of Justice of Ukraine, together with some key stakeholders, to developed draft law No. 6284 in full compliance with all methodological recommendations on legal drafting and development. Then the document was put up for public discussion. We can justify and explain each norm of the draft law,” noted Oleksandr Oliinyk.

Ihor Starodubov, President of the All-Ukrainian CSO “Union of Experts of Ukraine” drew attention to the necessity to prevent situations where the Disciplinary Chamber of Forensic Experts takes over the functions of justice.

"It is advisable to shift the role of the Disciplinary Chamber, which decides on whether to hold a forensic expert liable for violaton of discipline, from a punitive body to a body which regulate and contributes to the quality of forensic examinations”, said Ihor Starodubov and added that it was also important to increase the number of representatives of the forensic experts community in the Disciplinary Chamber.

Oleh Mykhaliuk, Key National Expert of the EU Project Pravo-Justice compared the experience of European jurisdictions in the regulation of legal liability of forensic experts with Ukrainian reality.

“In most European countries, there is a set of typical violations enshrined in law, which are considered as a basis for legal liability of forensic experts and are very similar to those existing in Ukraine. They include, in particular, the expert’s failure to fulfill an assignment without valid reasons; providing a deliberately false opinion; corruption offenses, etc. This being said, when it comes to sanctions, order and procedures of prosecution, they vary depending on the legal traditions of the countries. According to the legislation of Ukraine, a forensic expert may be brought to disciplinary, administrative, criminal, and/or pecuniary liability depending on the committed violation,” said Oleh Mykhaliuk.

Kostiantyn Kovalov, adviser to the Director of the State Research and Development Forensic Center of the MoI, noted in his speech that bringing a forensic expert to disciplinary liability was a very topical issue and needed careful discussion and weighed decision-making.

“When formulating the grounds and liability for disciplinary offenses based on the new legislation, one should be guided not only by procedural law and the Law “On Forensic Expertise”, but also by the Code of Labor Laws. There should be uniform standards for both state and private experts,” Kostiantyn Kovalov said.

Victoria Alekseychuk, Deputy Head of the Kyiv branch of the scientific center of the Institute of Forensic Expertise named after Ex. Prof. Bokarius spoke about the need to clarify the content of disciplinary offenses at the legislative level.

“Legal regulation of disciplinary liability of forensic experts under the existing legislation shall meet the requirements of legal certainty; fairness; equality of state and private experts; and take into account the guarantees of independence of forensic experts,” emphasized Viktoriia Alieksieichuk.

Vadim Khosha, leading researcher of the department of training of experts, Scientific Center of the Institute of Forensic Expertise named after Ex. Prof. Bokarius, reported on some problematic aspects of determining the grounds for the liability of a forensic expert. In particular, he highlighted the fact that the analysis of legislative norms demonstrates that the rights and prohibitions for a forensic expert are rather moral and ethical, than legal, in nature and, thus, can hardly be formally verified.

“Requirements for the professional activity of the expert service providers, regardless of their subordination and form of ownership, need to be consolidated in a law or a resolution of the Cabinet of Ministers of Ukraine through the introduction of the Code of Professional Ethics of Forensic Experts,” said Vadym Khosha.

The Ministry of Justice of Ukraine intends to take into account the comments and suggestions announced at the round table when preparing the next Monitoring Report on the analysis of legislation in the field of forensic expertise.