Forced examination and receipt of samples for comparative research: selected issues

In investigative practice there are situations when suspects or accused persons refuse to be examined or to provide biological models of activity of the organism. Thereby, carrying out examination or receiving samples for comparative research becomes impossible. At the same time, according to the criminal procedure law, evidence can be obtained by exclusively procedural way. In this regard there is a need for implementation of investigative actions forcibly. Examination is an investigative action and can be carried out, according to Article 179 of the Criminal Procedure Code of the Russian Federation, at the initiative of the investigator or, according to Art. 290 of the Criminal Procedure Code of the Russian Federation, at the initiative of the court. Part 1 of Art. 290 of the Criminal Procedure Code of the Russian Federation regulates that examination is made on the basis of the court definition or resolution in cases provided by Part 1 Art. 179 of the Criminal Procedure Code of the Russian Federation. Part 2 of Art. 290 of the Criminal Procedure Code of the Russian Federation defines that the examination of the person accompanied with their exposure is made in a separate room by the doctor or another expert who makes the examination statement. Then the specified persons come back to the hall of a court session. In the presence of the parties and the examined person the doctor or another expert reports to the court about the traces and signs on the examined body if there are any, answers questions of the parties and the judges. The act of examination joins the materials of a criminal case. In our opinion, the criminal procedure law needs the following additions: 1. In Article 179 of the Criminal Procedure Code of the Russian Federation it is necessary to reflect that the resolution of the investigator is obligatory for the testified person. In case of refusal of the person to voluntarily undergo examination, investigative action can forcibly be carried out on the basis of the judgment accepted in the order established by Article 165 of the Criminal Procedure Code of the Russian Federation. 2. It is necessary to fix in Article 202 of the Criminal Procedure Code of the Russian Federation that the investigator has no right to be present when receiving samples for comparative research from the person of the opposite sex if it requires exposure of the participant of the criminal legal proceedings. In this case investigative action is made by the doctor. If the person objects to be bared and refuses to provide samples for comparative research voluntarily, the investigator applies for production of investigative action forcibly, including the participation of the forensic scientist or the doctor. 3. In Article 202 of the Criminal Procedure Code of the Russian Federation it is required to state that the resolution of the investigator is obligatory for the person whose samples are received. In case of refusal to provide samples for comparative research voluntarily, they can be received forcibly on the basis of the judgment accepted in the order established by Article 165 of the Criminal Procedure Code of the Russian Federation. 4. Part 2 of Article 29 of the Criminal Procedure Code of the Russian Federation should include a point that the court is competent to make decisions on production of compulsory receiving samples for comparative research at failure of the person to provide samples voluntarily.

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