Comparative legal analysis of regulations governing the production of forensic examination and procedural status of expert witnesses in the criminal process in Russia and Germany

Abstract

The modern type of German criminal procedure is the most prominent representative of the Romano-Germanic legal system and therefore serves as an object of comparison with the criminal procedure of other countries. At the same time, the issues of the use of special knowledge by knowledgeable persons in the criminal proceedings of Russia and Germany have not been sufficiently studied. In this regard, the authors conducted a comparative legal analysis of the norms of the criminal procedural legislation of Russia and Germany, regulating the production of forensic examination. As a result of this study, the general and distinctive properties, the degree of similarity and differences in legal terms used in relation to these persons in the regulatory legal acts of the compared legal systems were revealed. The key figure in German criminal proceedings is the court, which bears the burden of proof, combining the functions of the prosecution and the resolution of the case on the merits. Knowledgeable persons as independent participants in criminal proceedings are not considered, since they are “means of judicial evidence”. The German legislator, unlike the Russian one, does not seek to specify the procedural status of competent persons in criminal proceedings at the level of the CPC of Germany, does not detail the procedure for the appointment and production of a forensic examination, as well as the timelines for its production and the requirements that determine the mandatory nature of its appointment. The results of the study allow us to take a fresh look at the domestic institution of knowledgeable persons, as well as expand the understanding of the application of special knowledge in the criminal process of the Federal Republic of Germany and the states following in the “wake” of the German Strafprozess.