Who Orders a Forensic Examination: Court, Investigator or a Party

You cannot order a forensic examination for yourself: the law reserves the power to “start” an inquiry for specific actors, and those actors differ from one type of proceeding to the next. Yet a party is not helpless — it can either move for an examination to be ordered, or independently commission an expert opinion and submit it as evidence. Drawing on my own expert practice, I explain below who exactly orders an examination (in criminal proceedings, the term is “engages” an expert) across criminal, commercial, civil and administrative proceedings, and when you are entitled to choose a specific expert.

”Ordering” and “commissioning an opinion” are two different acts

Before turning to the individual codes, grasp the key distinction — it clears up most of the confusion.

• Ordering (engaging) an examination can be done only by the body conducting the proceedings: a court, by its ruling; an investigator, an inquirer or a prosecutor, by their procedural decision. This is an act of authority that formally brings the expert into the case, warns them of criminal liability for a knowingly false opinion, and lets the body itself approve the final set of questions.
• Commissioning an expert opinion can be done by a party or its lawyer, on a contractual basis, outside the procedural appointment. This is the participant’s right to approach a certified forensic expert, obtain an opinion and file it in the case as evidence.

In criminal proceedings the Code calls this “engaging an expert”; in the court processes it is “ordering an examination” — but the substance is identical: the decision is taken by the body running the case. Both paths lead to the same instrument, a forensic expert’s opinion, but they differ by initiator: in the first, the driver is the state; in the second, the party itself. Understanding this difference immediately tells you where you should turn.

Criminal proceedings: prosecution, defence and the investigating judge

In the criminal process, the prosecution has the broadest scope to engage an expert. The investigator, inquirer or prosecutor engages an expert on their own, where grounds for an examination exist (Articles 242–243 of the Criminal Procedure Code of Ukraine, the KPK). Note the wording: the current Code speaks of “engaging an expert,” not “ordering” — the phrasing was updated in 2019, when the prosecution regained the right to engage an expert without a separate authorisation from the investigating judge. In practice this decision is formalised by a corresponding instruction (resolution) to carry out the examination.

In economic cases the initiators are often detectives of the Bureau of Economic Security (BEB), while the underlying materials are assembled with the involvement of the State Tax Service (DPS) and, in money-laundering matters, the State Financial Monitoring Service.

Mandatory cases

The Code sets out situations in which engaging an expert is mandatory (Article 242 of the KPK). The expressly listed cases concern mostly cause of death, the gravity of bodily injuries, mental state or a person’s age — that is, not economics. For economic questions a more general rule applies: where a circumstance material to the proceedings cannot be established without specialist knowledge, the court will, as a rule, need an expert opinion to treat the amount of loss or of unpaid tax as proven. Formally this is not a “mandatory examination” within the meaning of Article 242, but in practice, without a professional calculation, such figures remain vulnerable to challenge.

The defence’s rights

The defence need not merely observe. It has the right to:

• engage an expert independently on contractual terms and obtain an opinion — a direct exercise of the adversarial principle (Article 243 of the KPK);
• file a motion with the investigator, inquirer or prosecutor to have an expert engaged;
• where the inquiry requires acts that only a court may authorise (for example, access to seized and sealed documents), or where the prosecution refuses, apply to the investigating judge to have an expert engaged (Article 244 of the KPK).

So in criminal proceedings an examination can be initiated by both the state and the defence — the only questions are who moves first and on what grounds. During trial, the court itself may also engage an expert on a participant’s motion.

Commercial (economic) proceedings: court ruling or a commissioned opinion

In commercial disputes the court orders the examination by its ruling, where establishing the circumstances requires specialist knowledge (Article 99 of the Commercial Procedure Code, the GPK). Any participant may move for this — claimant, defendant or third party.

In parallel, the Code gives the parties a stand-alone tool: an expert opinion drawn up at the commission of a participant (Article 101 of the GPK). The participant contracts with the expert directly, sets the questions, and files the completed opinion together with the claim or the defence. This is convenient when you need to shore up your position before the court even decides whether to order an examination.

Civil proceedings: court or a party’s commission

The logic of civil procedure is the same. The court orders the examination (Article 103 of the Civil Procedure Code, the TsPK) — usually on a party’s motion, less often on its own initiative. Likewise, a party has the right to submit an expert opinion prepared at its commission (Article 106 of the TsPK).

In practice a commissioned opinion is a common move in civil cases such as loan disputes or the division of property: the party obtains the calculation in advance and enters the process with ready-made evidence, rather than a request to “order one and wait.”

Administrative proceedings: court under the KASU

In administrative litigation — for example, when challenging tax assessment notices — the same two regimes apply. The administrative court orders the examination under the relevant provisions of the Code of Administrative Judicial Procedure (the KASU), and a participant may equally submit an expert opinion drawn up at its commission. The procedure closely tracks the civil and commercial models, so the strategy is identical: either move before the court, or arrive with your own opinion.

Who orders and who commissions: a quick map

Type of proceeding	Orders / engages (the authority side)	May a party commission an opinion?
Criminal	Investigator, inquirer, prosecutor; investigating judge on the defence’s motion — Arts. 242–244 KPK	Yes — the defence (and the victim)
Commercial	Court (ruling) — Art. 99 GPK	Yes — Art. 101 GPK
Civil	Court (ruling) — Art. 103 TsPK	Yes — Art. 106 TsPK
Administrative	Court — under the KASU	Yes, under the KASU

When a party can choose a specific expert

This is the question that troubles people most, so I answer it directly.

• When you commission the opinion yourself, you choose the expert entirely at your own discretion. You contract with a specific certified forensic expert or institution, and it is you who decides whom to entrust with the inquiry.
• When you move for an examination to be ordered (engaged), you have the right to propose a particular institution or a named expert, but the final decision rests with the body ordering the examination. The court or the investigator may agree with your proposal — or may assign the inquiry to a different expert.

That is why an active stance at the motion stage is worth the effort: argue why you propose this particular specialist (their specialisation, certification in the relevant fields, realistic timelines, absence of a conflict of interest). Whether an expert holds a valid certification in the field you need can be checked against the Register of Certified Forensic Experts maintained by the Ministry of Justice of Ukraine.

The role of Ministry of Justice institutions and certified experts

Whoever initiates the inquiry, it may be carried out only by someone the law entitles to do so. The general principles are set out in the specialised Law of Ukraine “On Forensic Examination,” and the organisation and conduct are governed by the Ministry of Justice’s departmental Instruction on the ordering and conduct of forensic examinations and expert inquiries (No. 53/5).

Forensic examinations are carried out by:

• state specialised institutions — the forensic-science research institutes of the Ministry of Justice system and the expert services of other agencies;
• certified forensic experts who are not employees of state institutions, are entered in the state Register, and are entitled to conduct private expert activity in their fields.

For economic questions this means the economic-examination specialisms — the examination of accounting, tax-accounting and reporting documents; of documents on the economic activity of enterprises; and of documents on financial and credit transactions. The main thing to look at when choosing is not the institution’s form of ownership, but whether the specific expert holds a valid certification in exactly the specialism your case requires.

Common mistakes

Over years of expert work, the errors I see most often arise at the very moment of initiating the inquiry.

• Confusing “ordering” with “commissioning.” A party waits for months for the court to “order one itself,” when it could have commissioned an opinion in parallel and entered the process with ready-made evidence.
• Passivity when framing the questions. If you do not fight for the set of questions in your motion, the expert will answer your opponent’s questions in the opponent’s preferred wording.
• Trying to “impose” an expert in court. Proposing a specific specialist is a right, not a guarantee; do not count on the court appointing “your” expert.
• Legal questions instead of factual ones. Asking an expert to assess “guilt,” “the validity of a contract” or “whether evasion occurred” is outside their competence; the expert examines facts and figures, not the legal characterisation of an act.

In brief

The power to order (engage) an examination belongs to the court (in every type of litigation), and to the investigator, inquirer, prosecutor or investigating judge (in criminal proceedings). But a party is not a passive observer: in commercial, civil and administrative proceedings it can commission an expert opinion itself, and in criminal proceedings it can both engage an expert on contractual terms and apply to the investigating judge. You are free to choose a specific expert when you commission the opinion yourself; where the court orders the examination, you only propose the candidate.

If you are unsure which path fits your situation — to move for an examination or to commission an opinion, and whom to entrust with the inquiry — I invite you to a consultation: together we will settle the correct sequence of steps and frame the questions so that the opinion works for your position.