Expert examination: timing and documentation

Positions of the trial and appellate courts: the lower courts found the defendant guilty and convicted her under Article 121(2) of the Criminal Code.

In her cassation appeal, the defendant argued that the examination was delayed, taking place two months after arrest rather than immediately, which prevented her psycho-emotional state from being recorded with the participation of a psychologist and psychotherapist. She also considered the findings concerning her own and the victim’s alcohol intoxication—2.4 and 2.96 parts per thousand respectively—unreliable. She alleged procedural irregularities, the absence of a proper medical examination under the statutory procedure, no breathalyser verification certificates and no collection of biological samples for laboratory analysis.

Position of the Criminal Cassation Court: the lower courts’ decisions were upheld.

Reasoning of the Criminal Cassation Court: the panel noted that the case materials showed that the initial outpatient forensic psychiatric examination by a panel of experts was based on a clinical examination of the defendant and a study of the case materials. Its conclusions rested on the experts’ specialist knowledge, reflected in the investigative section of their report. The cassation court therefore treated the defendant’s assertion that the report indicated a post-mortem examination as a misunderstanding of the document and a defence argument aimed at an unfounded challenge to the opinion.

Her argument that the conclusions were unreliable because the examination took place two months after arrest rather than immediately after the incident, with the mandatory involvement of a psychologist and psychotherapist to record her psycho-emotional state, was also unfounded. The legislation does not require an examination immediately or on the day of arrest, and the two-month interval corresponded to the objective time needed to gather materials and commission a panel examination. The expert panel was also sufficiently qualified to assess the person’s condition without mandatory involvement of a psychotherapist or psychologist where that was not considered necessary to answer the questions posed.

The defendant’s arguments concerning the absence of breathalyser conformity or verification certificates from the case file and the lack of additional laboratory testing were unpersuasive. Expert examinations had established blood alcohol concentrations of 2.4 parts per thousand for the defendant and 2.96 for the victim. Neither the applicable Criminal Procedure Code nor the specialist legislation requires an expert institution to append verification certificates for internal laboratory equipment to every expert opinion.