Використання рецензії на висновок експерта у кримінально-процесуальному доказуванні

The article deals with a controversial theoretical and applied issue: the use of the review of the expert’s findings in criminal procedural proving. In doctrine and practice, there are generally opposing approaches to the admissibility of such a review: from a categorical denial for the purposes of proof to recognition of such a possibility and formulation of proposals for improving the regulatory framework for review. The author examines the positions of the Criminal Court of Cassation on the issues of review and approaches in court judgments. The author provides a number of arguments regarding the inadmissibility of an exclusively formal approach to assessing the possibility to use the review of the expert’s findings in proving. The author substantiates that the issue of using the review of the expert’s findings in evidence is complicated by the Procedure for Reviewing Forensic Expert Findings approved by the Order of the Ministry of Justice of Ukraine No. 335/5 dated 03 February 2020, which prohibits reviewing for the purpose of refuting or confirming the conclusions. At the same time, this Procedure is a subordinate regulatory act, not part of the criminal procedure legislation, and therefore should not affect the assessment of the possibility of using a review in proving. The criminal procedure legislation provides for the possibility to disagree with the expert’s findings, which can be done in various forms, including providing data confirming compliance/inconsistency with the methods, sufficiency of samples, correctness of questions, etc. This can also be done by providing a review, which, with such information, meets the characteristics of a document as a source of evidence. Therefore, in order to ensure the validity of the procedural decision, the assessment of a document entitled ‘review’ should not be formal with reference to a bylaw (which is actually a refusal to examine data that may be in favour of the defense), but substantive, i.e. the content should be analyzed and the expert’s findings should be assessed taking into account the review. In doing so, the competence of the expert who provided the review must be taken into account. A review cannot under any circumstances be identified with an expert’s findings.