Procedural shortcomings in the appointment and conduct of expert examinations in criminal proceedings under Article 191 of the Criminal Code of Ukraine.

Where a defence lawyer is tasked with reviewing the materials of criminal proceedings in which their client is charged with an offence under Article 191 of the Criminal Code of Ukraine, particular attention should be paid to the findings of expert reports.

An expert’s report is an extremely significant and independent procedural source of evidence in criminal proceedings. Although such evidence does not have a predetermined weight or any advantage over other sources of evidence, it is expert reports that most often form the basis of the prosecution’s case.

A carefully detailed description of the expert’s investigations and a well-reasoned expert opinion form the basis of the prosecutor’s case in criminal proceedings concerning the misappropriation, embezzlement or unlawful acquisition of another person’s property, committed through abuse of official position.

However, the need to ensure that the pre-trial investigation is carried out within a reasonable timeframe often leads to procedural shortcomings in the appointment and conduct of forensic economic or commodity expertise.

Let us consider the most common and tried-and-tested scenarios for the defence’s response should attempts to ‘cut corners’ be detected during the appointment and conduct of expert examinations by the prosecution.

A common situation arises where an investigator or prosecutor submits to an expert for examination only a portion of the evidence gathered during the pre-trial investigation (the subject matter of the examination), which they consider sufficient for the examination to be carried out. There are also cases where the pre-trial investigation authority orders an examination without waiting for responses to requests made in accordance with Article 93 of the Code of Criminal Procedure of Ukraine or until the expiry of the investigating judge’s order granting temporary access to items and documents.

In such cases, it is necessary to demonstrate to the court that the examination carried out was incomplete. Establish the chronology of the investigative and procedural actions carried out by the pre-trial investigation authority, as well as the scope of information and documents obtained by the investigator at the time the decision to order an expert examination was made.

Insist that the expert, in accordance with paragraph 2.2 of the Instructions (approved by Order of the Ministry of Justice of Ukraine No. 53/5 of 8 October 1998, as amended) was not deprived of the opportunity to notify the authority that appointed the expert examination in writing of the impossibility of carrying it out and to return the case materials and other documents provided, if the materials provided to him were insufficient to resolve the issue at hand and the additional materials requested had not been provided.

Please note that the sources containing the source data used during the expert examination do not correspond to the actual circumstances of the case, as they differ from the actual volume of work carried out, services provided or goods supplied. It should be emphasised that an error in the expert examination was introduced as early as the stage when the prosecution formulated the terms of reference for the expert, as a result of which the amount of economic loss or the amount of irretrievable loss of assets determined by the expert is unreliable. Consequently, the expert report does not corroborate the facts set out in the indictment.

If the expert carried out the investigation despite an obvious lack of sufficient source data to form an objective conclusion, then, in all likelihood, such an expert report will not contain a specific list of the items examined. Please note whether the expert’s report describes all the documents provided for examination. If the report merely states ‘materials in five volumes’ or something similar, point out that it is impossible to establish with certainty exactly what was provided to the expert for examination and in what quantity.

In accordance with the requirements of Article 102 of the Code of Criminal Procedure of Ukraine, the expert’s report must include a description of the materials received by the expert and specify which materials were used by the expert. In accordance with paragraph 3.3 of Section 3 of the Instructions, the document appointing the expert examination must list all items submitted for expert examination, specifying their exact names, quantities, weights and other distinctive individual characteristics.

Ask the court to note that the expert’s report lacks information regarding the list of items provided for examination, as well as the titles of the documents and the number of pages received by the expert institution. This may lead to the expert’s report being deemed unfounded.

Do not forget to ensure that an expert examination is ordered and carried out at the initiative of the defence. In some cases, such an examination should be ordered after the materials of the criminal proceedings have been disclosed to the defence in accordance with Article 290 of the Code of Criminal Procedure of Ukraine. Provide the expert body with a comprehensive list of documents necessary to carry out a thorough examination.

Highlight to the court the difference in the quality of the defence’s approach to the process of appointing an expert examination. Present arguments as to why the expert opinion obtained by the defence is the most comprehensive; highlight the differences in the experts’ conclusions in relation to the scope of the items submitted to the expert institution for examination.

In order to ‘simplify’ the expert’s work and obtain the results of the expert examination more quickly, there may be instances where the prosecution submits, in addition to other materials, expert opinions, reports of inspections or audits carried out on the prosecution’s initiative to the expert for examination.

It is not uncommon for questions put to the expert body to begin with phrases such as: “Are the findings of the audit of the enterprise’s financial and operational activities, as set out in the report / acts / conclusion …, supported by documentary evidence?”

In such cases, a motion should be filed to have the original expert’s conclusion, report or act declared inadmissible evidence, and a motion should also be filed to have the expert’s conclusion declared inadmissible.

In accordance with the provisions of Part 2 of Article 93 of the Code of Criminal Procedure of Ukraine, the prosecution gathers evidence by conducting investigative (search) measures and covert investigative (search) actions, by requesting and obtaining from state authorities, local self-government bodies, enterprises, institutions and organisations, as well as from public officials and private individuals, items, documents, information, expert reports, audit reports and inspection reports, and by carrying out other procedural actions.

The Code of Criminal Procedure of Ukraine, in the context of evidence gathering, does not provide for the right of an investigator to order expert examinations, audits or inspections, as these do not fall within the scope of measures to ensure criminal proceedings, nor do they constitute overt or covert investigative (search) measures. This does not fall within the powers of the prosecution, which must be exercised solely in the manner provided for by procedural law, including compliance with the provisions of Articles 40 and 71 of the Code of Criminal Procedure of Ukraine.

Evidence obtained after the commencement of criminal proceedings through the exercise by pre-trial investigation bodies or the Public Prosecutor’s Office of powers not provided for in the Code of Criminal Procedure of Ukraine for the purpose of conducting a pre-trial investigation into criminal offences is inadmissible.

The Code of Criminal Procedure of Ukraine does not provide for the right or duty of an expert to establish compliance with or breaches of specific aspects of financial and economic activity by conducting an audit on matters which, in accordance with Article 69 of the Code of Criminal Procedure, may be the subject of an expert examination.

In accordance with the provisions of paragraph 5 of Article 101 of the CPC of Ukraine, an expert’s opinion may not be based on evidence deemed inadmissible by the court.

The ‘fruits of the poisonous tree’ doctrine applies, under which not only evidence directly obtained as a result of a breach is deemed inadmissible, but also evidence which would not have been obtained had the former not been obtained. Consequently, evidence which is admissible in its own right but which was obtained using information derived from inadmissible evidence becomes inadmissible. This doctrine requires an assessment not only of each piece of evidence in its own right, but also of the entire chain of directly interlinked evidence, some of which follows from others and is derived from them.

It is reasonable to assume that providing an expert with a specialist’s report, an audit report or an inspection report as one of the objects of examination will have a significant impact on the results of the expert examination and distort them.

An expert’s report, like any other piece of evidence, will be subject to assessment. A defence lawyer’s ability to identify any attempts by the prosecution to circumvent the rules governing the appointment and conduct of expert investigations may prove to be a decisive factor in the court’s formation of its internal conviction when examining expert reports in criminal proceedings.

“Bulletin of the Ukrainian Bar Association” No. 7 (69), December 2025.
Read the article on the Ukrainian Bar Association’s website: here.