Criminal and legal protection of the activity of a legal expert
Authors: Kuznetsov V.V. 
Published: December 2022

The analysis of the norms of the Criminal Code of Ukraine allowed to establish the availability of only two articles (Articles 343, 386) that provide responsibility for illegal actions against an expert. It has been stated that among the victims of such criminal offenses, the theory of law defines exactly judicial experts. In the article, an attempt is made to investigate the question of whether legal experts belong to the category of judicial specialists (experts), and to evaluate the legal significance of the scientific and legal conclusions they prepare.

It was affirmed that the relevant legislation does not provide the recognition by a judicial expert of such a specialist as an expert on legal issues. It has been established that certain procedural (civil, economic and administrative justice) codes divide the categories of legal expert” and “judicial expert”, which are significantly different; however, the criminal procedural code of Ukraine does not contain such a concept at all, but uses the term expert as a participant in the criminal process, that is a judicial expert. The analysis of judicial practice and scientific literature allowed us to assume that the conclusions of scientific and legal expertise are used in the criminal process.

It has been proven that the Supreme Court and the Constitutional Court of Ukraine use in their practice the conclusions of the members of the scientific advisory councils, i.e. experts in the field of law. A certain injustice was noted regarding the possibilityof using conclusions on legal issues in court proceedings at different levelsof the judicial system.

The considered provisions of the regulatory legal acts allowed to classify expert conclusions on legal issues depending on certain criteria: by legal meaning (prohibited for use and permitted for use); by compensatory nature (paid and unpaid); according to the procedure of involving an expert (on the initiative of the participants in the process and on the initiative of the court).

The article suggests the characteristics of an expert conclusion on legal issues: it has a recommendatory character; has local legal significance (refers to a specific court case); is not evidence in the case; does not entail legal responsibility for the expert; can be prepared by both an individual and a legal entity.

The conducted research allowed to draw certain conclusions: a legal specialist (expert) does not belong to the category of judicial experts; the legal status of a legal specialist (expert) and a judicial expert have significant differences; the victim in the commission of criminal offenses provided in Articles 343 and 386 of the Criminal Code of Ukraine cannot be a legal specialist (expert); based on the study of foreign experience, law-making activity, current legislation and national law enforcement practice, it is proposed to extend such a legal institution to the Criminal Procedure Code of Ukraine and the Code of Ukraine on Administrative Offenses; in the legislation, it is recommended to provide a mechanism of criminal legal protection of the activity of a legal specialist (expert) by making appropriate changes to Articles 343 and 386 of the Criminal Code of Ukraine.