Powers and Competence of a Product examination expert

What documents are needed for a specialist's opinion and an expert's opinion

Clients, representatives of parties, and courts often ask: what documents must an expert have in order to prepare a specialist's opinion or an expert's opinion.

Most often they ask: is a license for forensic expert activity needed, is accreditation needed, is state certification needed, is a Ministry of Justice of Russia certificate needed, is it necessary to be included in the state register of experts, can a non-governmental expert prepare an opinion for the court, and can the court assign an examination to a specific expert, not just to an expert institution.

It is important to distinguish between two documents: a specialist's opinion and an expert's opinion.

Specialist’s report

A specialist's conclusion is prepared at the request of a citizen, organization, lawyer, party representative, or other interested person.

Such a document can be prepared before the court, during a trial, in preparation of a claim, lawsuit, objection, motion for the appointment of a judicial examination, or when analyzing an existing conclusion.

A specialist's conclusion can be used for a preliminary assessment of a situation, preparation of a claim or lawsuit, preparation of objections, confirmation of a party's product examination position, formulation of questions for a forensic examination, justification of the need for appointing a forensic examination, analysis of the conclusion of another expert or specialist, as well as for submission to the court along with other case materials.

To prepare a specialist's conclusion on product examination issues, a separate license for forensic expert activities is not required. The decisive factors are specialized knowledge, education, qualifications, research experience, sufficiency of the submitted materials, applied methodology, and the ability to substantiate the conclusions made.

In criminal proceedings, the conclusion of a specialist is directly defined as a written judgment on the issues presented to the specialist by the parties. In civil, arbitration, and administrative proceedings, a specialist may be involved for consultations, explanations, and clarification of the professional opinion of a person possessing special knowledge.

Expert examination report

An expert's conclusion is prepared not simply at the request of a party, but after the appointment of an examination by the court, investigator, inquirer, official, or other authorized body.

The basis for preparing an expert's conclusion is a procedural document: a court order, an investigator's resolution, an inquirer's resolution, an order or resolution of an official, or another procedural act of an authorized body.

After being appointed to an examination, a person acquires the procedural status of an expert. The expert studies the materials presented, applies specialized knowledge, describes the course of the examination, indicates the methods used, and formulates conclusions on the questions posed.

What should be in the expert's report

The expert's report must be written, reasoned, and verifiable.

The expert's report usually includes:

• date, time, and place of the examination;
• basis for conducting the examination;
• information about the authority or person who appointed the examination;
• information about the expert institution or expert;
• surname, first name, and patronymic of the expert;
• education, specialty, work experience, and information on qualifications;
• warning by the expert about responsibility for giving an intentionally false report;
• questions posed to the expert;
• objects of research and case materials presented to the expert;
• content and results of the research;
• applied methods;
• evaluation of research results;
• justification of conclusions;
• answers to the posed questions;
• appendices, photographic materials, tables, diagrams, and other materials illustrating the research.

Federal Law No. 73-FZ stipulates that an expert provides a written opinion on their own behalf, and the opinion reflects the content and results of the research, evaluation of results, justification, and formulation of conclusions on the posed questions.

If the expert concludes that the posed questions exceed their special knowledge or that the provided materials are insufficient, the expert prepares a reasoned notification about the impossibility of giving an opinion.

Can Andrey Viktorovich conduct product examination

Yes, Andrey Viktorovich can be proposed to the court, investigator, inquiry officer, official, or other authorized body as a specific expert to conduct a product examination, if the questions posed relate to the field of his special knowledge.

The legislation of the Russian Federation does not restrict the conduct of forensic examinations to only state forensic institutions.

A forensic examination can be entrusted to a state forensic institution, a non-state forensic institution, a specific expert, several experts, or another person possessing special knowledge.

Federal Law No. 73-FZ explicitly provides that a forensic examination can be conducted outside of state forensic institutions by persons possessing special knowledge in the fields of science, technology, art, or craft, but who are not state forensic experts.

The Ministry of Justice of Russia, in response to Andrey Viktorovich, also indicated that judicial expertise can be conducted outside of state judicial expert institutions by individuals possessing special knowledge but who are not state judicial experts.

In addition, the Ministry of Justice of Russia explained that when an examination is entrusted to a non-state expert organization or an individual who is not a state judicial expert, their competence is determined by the body or person appointing the examination.

Civil cases: Civil Procedure Code of the Russian Federation

In a civil process, persons participating in the case have the right to ask the court to appoint an examination in a specific judicial expert institution or to entrust it to a specific expert.

This means that in a civil case, a product examination expert examination can be assigned not only to an institution but also to a specific expert if the court considers him competent to answer the questions posed.

The expert opinion under the Civil Procedure Code of the Russian Federation must contain a detailed description of the conducted research, conclusions, and answers to the questions posed by the court. The expert opinion is evaluated by the court alongside other evidence.

Arbitration cases: Arbitration Procedure Code of the Russian Federation

In the arbitration process, an expert is a person who possesses special knowledge on issues related to the case under consideration and is appointed by the arbitration court to provide an opinion.

The Arbitration Procedure Code of the Russian Federation provides that in the order on the appointment of an examination, the arbitration court specifies the surname, first name, and patronymic of the expert or the name of the expert institution, the questions, materials, documents, and the deadline for submitting the opinion.

Therefore, in an arbitration case, Andrey Viktorovich can be proposed by a party and appointed by the arbitration court as a specific expert on commodity science issues.

An expert report under the Arbitrazh Procedure Code of the Russian Federation is issued in writing and signed by the expert. It states the content and results of the examinations, the methods used, the conclusions on the questions posed, and the fact that the expert was warned of criminal liability for knowingly issuing a false report.

Administrative cases: APC of the Russian Federation

In administrative proceedings, an expert is a person who has special knowledge and is assigned to conduct an examination and give an opinion on issues requiring special knowledge.

The APC of the Russian Federation provides that an examination may be assigned to an expert institution, a specific expert, or several experts.

Therefore, in an administrative case, the court has the right to assign a product examination to a specific expert, including Andrey Viktorovich, if the issues relate to his special knowledge.

The expert conclusion under the Code of Administrative Offenses of the Russian Federation (CAO RF) is drawn up in written form and must include information about the conducted examination, about the expert, a warning about liability, questions, objects and materials of the study, a description and results of the research with an indication of the methods used, conclusions, and their justification.

Cases of administrative offenses: CAO RF

Under the CAO RF, a person possessing the special knowledge necessary to conduct an examination and provide an expert opinion may be engaged as an expert.

When an examination is appointed in a case of an administrative offense, the person against whom the proceedings are being conducted and the victim have the right to request the engagement of persons they specify as experts. The expert provides a conclusion in written form on their own behalf.

Consequently, in the case of an administrative offense, Andrey Viktorovich may be proposed and involved as a specific expert on product examination issues, provided that he is not interested in the outcome of the case and possesses sufficient specialized knowledge.

Criminal cases: Criminal Procedure Code of the Russian Federation

The Criminal Procedure Code of the Russian Federation provides that forensic examination is carried out by state judicial experts and other experts from among persons possessing specialized knowledge. The resolution on the appointment of a judicial examination specifies the surname, first name and patronymic of the expert or the name of the expert institution.

The Plenum of the Supreme Court of the Russian Federation has explained that when assigning the conduct of an examination to a person who is not a state judicial expert, the court should first request information about the possibility of conducting the examination and information about the expert, including surname, first name, patronymic, education, specialty, work experience as a judicial expert, and other data indicating competence and proper qualification.

Therefore, even in criminal proceedings, the law does not restrict examinations exclusively to state experts. The appointment of another expert from among persons possessing special knowledge is possible.

Is a license required

For preparing a specialist’s report and conducting a judicial examination on commodity science issues, a separate license "for judicial and expert activities" is not provided by the legislation of the Russian Federation.

Federal Law No. 99-FZ "On Licensing Certain Types of Activities" establishes a list of activities for which licenses are required. The introduction of licensing for other types of activities is only possible through amendments to the list of licensed activities provided by law.

Judicial and expert activities of a non-governmental expert on commodity issues are not established as an independent licensed type of activity for which a universal license is required.

The Ministry of Justice of Russia indicated that the requirements for a non-governmental expert to have a license, certificate, diploma, or certificate authorizing them to conduct forensic examinations are not provided for by the legislation of the Russian Federation.

Is accreditation required

The legislation of the Russian Federation regulating the organization and conduct of judicial examinations does not contain a mandatory requirement for a non-governmental expert to have accreditation in order to prepare a specialist's opinion or an expert's opinion on goods-related issues.

The Ministry of Justice of Russia has explicitly stated that requirements for non-governmental expert organizations in terms of certification and accreditation are not provided for by the legislation of the Russian Federation.

If answering a specific question requires special tests, chemical analysis, materials research, or other laboratory research, the expert may use a specialized laboratory, appropriate tools, measuring instruments, devices, and equipment, or involve a specialist in the relevant field of knowledge.

Is state certification required

Mandatory state certification of a non-governmental expert on commodity science issues as a condition for preparing a specialist's conclusion or an expert's conclusion is not established by the legislation of the Russian Federation.

At the same time, documents on education, advanced training, professional certification, membership in expert associations, work experience, and research experience are significant as documents confirming the expert's competence.

That is, certification, certificates, diplomas, and membership in professional associations can confirm professional level, but they are not a universal state permission without which an expert is not entitled to conduct a commodity science examination.

Is a certificate from the Ministry of Justice of Russia required?

A separate certificate from the Ministry of Justice of Russia "for the right to conduct forensic product examination" for a non-governmental expert is not provided for by the legislation of the Russian Federation.

The Ministry of Justice of Russia clarified that the requirements for non-governmental expert organizations regarding certification and accreditation, as well as the requirements for a non-governmental expert to have a license, certificate, diploma, or certificate of the right to conduct judicial expertise, are not provided for by the legislation of the Russian Federation.

This does not mean that documents on education, qualifications, experience, and professional training are irrelevant. On the contrary, such documents are used to confirm the competence of an expert. However, a separate permitting document from the Ministry of Justice of Russia specifically "for the right to conduct judicial product examination" is not required for a non-governmental expert.

Disputes under the Law of the Russian Federation "On Protection of Consumer Rights"

Commodity examinations are often conducted in disputes related to the application of the Law of the Russian Federation of 07.02.1992 No. 2300-1 "On the Protection of Consumer Rights".

Such disputes may concern the quality of the goods, the presence or absence of defects, the causes of defects, the significance of defects, the conformity of the goods to the description, sample, labeling, technical documentation or contract terms, compliance with the rules of operation, storage, transportation or installation, the possibility of repair, the cost of restorative repair, the amount of reduction in the value of the goods, and the possibility of further use of the goods for their intended purpose.

According to Article 18 of the Law of the Russian Federation "On Protection of Consumer Rights," in a dispute over the causes of defects in a product, the seller, manufacturer, authorized organization, authorized individual entrepreneur, or importer is obliged to conduct an examination of the product at their own expense; the consumer has the right to be present during the examination and to challenge its result in court.

In such disputes, an expert's conclusion can be used for a preliminary assessment of the quality of the goods, preparation of a claim, justification of the consumer's or seller's position, as well as for preparing a petition for the appointment of a judicial product examination.

If the dispute is already being considered by the court, a product examination can be appointed by the court, and Andrey Viktorovich may be proposed by a party and appointed as a specific expert, provided that the questions posed relate to his field of expertise.

Disputes arising from contractual obligations of the parties

Commodity research is also conducted in disputes arising from the contractual obligations of the parties.

Such disputes may arise between citizens, individual entrepreneurs, and organizations under contracts of sale, supply, contract work, provision of services, storage, transportation, repair, manufacturing, installation, and other contracts.

Within the framework of contractual disputes, the compliance of the goods or the work result with the terms of the contract and mandatory requirements is examined, as well as their conformity with the description, sample, technical specification, specification, or delivery set, the presence and nature of defects, the reasons for their occurrence, whether the defects are of a manufacturing, operational, transport, or other nature, compliance with storage, transportation, installation, and operational conditions, completeness of the goods, the possibility of eliminating defects, the cost of elimination, the amount of price reduction, and the possibility of using the object for its intended purpose.

A specialist's conclusion or an expert opinion on commodity-related matters may be significant not only in consumer disputes but also in disputes between contracting parties when it is necessary to establish the quality of the goods, the presence of defects, the reasons for their occurrence, the cost of rectification, the amount of damage, or the compliance of the object with the contract terms.

What is really important for appointing an expert

When appointing an examination, the court or another authorized body assesses the competence of a specific person.

For product examination, the following are important:

• special knowledge in the field of commodity science;
• related education;
• additional professional education;
• documents on qualifications;
• experience in conducting commodity research;
• knowledge of GOST, technical regulations, technical specifications, operational documentation, and research methods;
• availability of a laboratory, tools, measuring instruments, devices, and equipment necessary for examining specific objects;
• the ability to conduct a complete, objective, and verifiable examination;
• independence of the expert;
• lack of interest in the outcome of the case;
• willingness to provide explanations on the conclusion in court.

Competence of Andrey Viktorovich

The competence of Andrey Viktorovich is confirmed by a set of information and documents:

• specialized education;
• additional professional education;
• qualification in the field of product examination;
• experience in conducting expert examinations;
• special knowledge on the study of industrial and non-food products;
• membership in and documents from professional expert associations;
• availability of a laboratory, tools, measuring instruments, devices, and equipment for conducting research;
• application of regulatory and technical documentation;
• ability to prepare a specialist's report and an expert's conclusion;
• readiness to provide explanations on the conclusion in court.

Andrey Viktorovich's professional liability as a forensic expert is insured. Having liability insurance is an additional confirmation of a responsible approach to expert work and preparation of reports for the court, citizens, organizations, and representatives of the parties.

Which documents can be submitted to the court

At the request of the court, the parties, or a representative, the following may be submitted:

• information letter for the court;
• Consent to conduct a judicial examination;
• Information about the expert;
• documents on education;
• documents on additional professional training;
• documents on qualifications;
• information on work experience and research experience;
• information on professional certification and membership in expert associations;
• Information about the laboratory, instruments, measurement tools, devices, and equipment;
• Information about professional liability insurance;
• details of the expert or expert organization;
• proposal regarding the terms and cost of the examination;
• a list of questions that may be submitted for the expert's resolution.

In simple terms

A separate license "for examination" is not required for the conclusion of a specialist on commodity science issues.

For the conclusion of an expert on a judicial assignment, a non-state expert is not required to be an employee of a state judicial-expert institution.

Separate mandatory accreditation, mandatory state certification, or a special certificate from the Ministry of Justice of Russia "for the right to conduct forensic product examination" are not provided for by the legislation of the Russian Federation.

The court has the right to assign an examination to a specific expert if they possess special knowledge and can conduct an investigation on the questions posed.

The main importance is given to education, qualification, experience, special knowledge, availability of necessary tools and equipment, independence, completeness of the investigation, and validity of conclusions.

Conclusion

The legislation of the Russian Federation allows the conduction of judicial expertise not only by state forensic institutions.

The Civil Procedure Code of the Russian Federation, the Arbitration Procedure Code of the Russian Federation, the Code of Administrative Court Procedure of the Russian Federation, the Code of Administrative Offenses of the Russian Federation, and the Criminal Procedure Code of the Russian Federation allow assigning expertise to a specific expert or another person possessing special knowledge.

Therefore, Andrey Viktorovich can be proposed to the court or another authorized body and appointed as a specific expert to conduct a product examination if the questions posed relate to his special knowledge.

A separate license, mandatory accreditation, mandatory state certification, or a special certificate "for the right to conduct judicial expertise" for a non-state expert in commodity matters is not provided for by the legislation of the Russian Federation.

The competence of an expert is confirmed not by a single universal document, but by a combination of information: education, qualifications, experience, special knowledge, availability of a laboratory, instruments and equipment, professional documents, liability insurance, and the quality of the conducted research.

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