1 - The law regulating the forensic
medicine
Act No. 96 of 1952 concerning regulating expertise
profession before the judicial authorities (under Article 63)
regulated judicial expertise authorities, which can be used during the course
of criminal proceedings during the investigation and trial stages, including
forensic medicine and the experts of the Ministry of Justice, these authorities
follow administratively the Ministry of Justice.
The law puts an entire structured
working mechanisms for these authorities, starting with requirements, methods
of appointing, start date, specialties, transfers, fees assessments, the rights
and obligations assigned to them and finally sanctions and methods of
disciplining.
2 - Proceeding to the crime scene to
conduct forensic examinations.
According to Article 50/1
of the said law "The judicial authorities may assign one or more experts
to carry out acts of expertise from the experts panel or assign the experts department
at the Ministry of Justice or the Department of Forensic Medicine, or one of
the other departments entrusted with the work of expertise, and in special
circumstances they may assign others but must indicate that in the
judgment"
Article 47 of the same law
states that “experts of Ministry of Justice and Forensic Medicine Authority consider
judicial officers regarding the crimes related to the work they conduct and in
the course of carrying out"
Based on the above-mentioned two Articles,
Courts and members of the Public Prosecution may assign experts from Forensic Medicine
Authority as may be necessary for investigation or trial. The assignment
involves, in addition to medically examine the person or the corpse is
proceeding to the crime scene and conducting examinations of other seized
substances or the materials found at the crime scene during the inspections.
And in order to facilitate that the legislator considered forensic experts
regarding the exercise of their functions judicial officers.
Therefore, they fall within the
scope of Article 24 of the Criminal Procedure Code; which states
that “The judicial officers must receive all clarifications and conduct
necessary inspections in order to facilitate the investigation facts they have
been notified of. They have to take all precautionary measures to preserve the
evidences of the crime.”
All the procedures carried out by the judicial
officers must be stated in reports signed by them stating time and place of occurrence
of the procedures, Then submitted to the Public Prosecution attached with papers
and seized materials. Accordingly, it is permissible for forensic experts to
move to the crime scene to get clarifications and conduct necessary inspections
to facilitate the fact investigation.
The Act regulating Expertise
Profession before the Judicial Authorities obliges them to reside in the same
country that has the headquarters of their work and do not leave without prior
permission for the sake of the public interest and the speed of the transfer to
the crime scene to conduct the required inspections and examination.
According to Article 46 of the said
law “Experts of Ministry of Justice and Forensic Medicine Authority must reside
in the country with the headquarters of their work."
3 - The use of forensic evidences in
the courts and the role of the expert witness.
Article 48 of the Act regulating expertise profession before the judicial
authorities stipulates that “Experts of Ministry of Justice and Forensic Medicine
Authority are required to take an oath to do their job with utmost honesty
before one of the Court of Appeal’s circuits prior to the commencement of work."
Article 292 Chapter VII of Part II of volume 2 of the Code of
Criminal Procedure titled (witnesses and other evidence) stipulates that
"the court either on its own or upon the request of the litigants to
appoint one or more expert in the case."
Article 293 of the same Act states that “court on its own motion or
upon the request of the litigants, to order, to notify the experts to provide
clarification on the hearing regarding the reports submitted by them in the
preliminary investigation or before court."
The articles mentioned above show
the importance of the forensic expert and the reports he submits as technical
evidence in the criminal case and his testimonies as oral evidence.
Whereas there are three types of evidence:
1.
Oral
evidence such as testimony from witnesses
2.
Physical
evidence such as seized materials, substances and official documents
3.
Technical
evidence such as expertise profession and technical reports
Therefore the Public Prosecution and
Courts may use forensic experts to prepare written reports and the outcomes of
the examination consider technical evidence in papers . They may also be summoned
to hear their testimony regarding certain clarifications and it considers oral evidence
in criminal case .
Whereas the Court of Cassation used
the same in its judgments and ruled that “If the core of these trials based on oral
investigation conducted by the court in the hearing and listening to the witnesses
confronting the defendant if it is possible, However this does not prevent the
court from relies on other methods of proof beside listening to the testimony
of witnesses in the preliminary investigations, such as the testimonies of
other witnesses and inspection and medical reports because these methods also consider
evidence of the case that should be reviewed during the court hearing whether with
affirmative or denials and for the litigants to discuss what they want to
discuss from it. "
(Challenge No. 385 of judicial year
22 - Hearing Date 05/06/1952 – Technical Office 3 - Part 3 - Page No. 1041)
4 - The training of the members of
the Public Prosecution office in this field
The National Center for Judicial
Studies (NCJS) is an educational, training and
research entity for the members of the Public Prosecutions and judges; it’s under
the supervision of the Ministry of Justice.
At the beginning of the prosecutor’s career,
he receives a judicial education course and intensive training at the said Center
and the course includes lectures and trainings concerning forensic and criminal
evidence.
5 – The hiring of forensic experts
by defenders
It is illegal to hire experts working
and registered at the Forensic Medicine Authority by litigants; Whereas Article 44 of the law regulating the
expertise profession before the judicial authorities states that " It
is not permissible for experts of Ministry of Justice and Forensic Medicine
Authority to combine with their jobs another job, business or work that is conflicting
with the integrity and independence of their works.”
None of them without special
authorization is allowed to be an arbitrator even without pay in a dispute
related to his work, even if this conflict does not arise before the court. Also,
they are not allowed to provide advisory reports. Or to be appointed as
receivers or bankruptcy trustees.
The Advisory Board may decide to
prevent the expert from engaging in any other work that will interfere with the
duties of his job and performance, However, there is no legal impediment for the
defendant to hire a forensic experts provided that they are not registered or
working for the Forensic Medicine Authority whether those who finished their
term of office or unregistered to submitting advisory reports before the public
prosecution or the courts.
The defendant has the right to refute the
charges against him by all means, whereas the use of experts and advisory
reports are part of the defense rights guaranteed to the defendant in
accordance with the law.
Whereas Article 88
of the Code of Criminal Procedure states that "the defendant can use a
consultant and to be able to review the documents and what previously submitted
to the expert appointed by the judge, provided that
does not cause case delay"
The Egyptian Court of Cassation ruled that “every
accused person in a felony is entitled with a defense lawyer defending him
before the criminal court; However, he did not guide the defense to a certain plan
because he did not want the lawyer to follow the same strategy every time but
rather left to him the defense plan based on his integrity and legal experience.”
(Challenge No. 23908 of judicial
year 65 - Hearing Date 5/1/1998 – technical office 49 - Part 1 - Page 26)
6 - The relationship with the other
relevant parties in this field
The public prosecution and courts
does not only rely on the experts of the Forensic Medicine Authority in
technical matters but also use other Authorities, depending on the nature of the
case and the technical issue that needs to be examined such as experts of Ministry
of Justice, Criminal Lab, Chemical Lab, Criminal evidences, and other
authorities, which the investigation Authorities or trial depending on the
circumstances believe it’s important for the proceedings process of the
criminal case like university professors in specific specialties.
According to Article 1 of the
Law regulating expertise profession before the judicial authorities “Experts from
the current table list and experts of the Ministry of Justice and the Forensic Medicine
Authority in addition to any other Authorities carry out work of expertise
before the Judicial Authorities.”
Translation by Heba Musa
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