In the previous material, which concerned forensic psychiatric examination, an expert Andriy Kanishchev emphasized that the most problematic and painful issue in the legislation on forensic examination is the state monopoly on certain categories of forensic examinations, including forensic psychiatric examination. This article explains why the forensic psychiatric examination became illegal.
The law on forensic examination outside the legal field has left numerous institutions of communal ownership, in which nowadays 99% of forensic psychiatric examinations are concentrated. Thus, in Ukraine (with the exception of temporarily occupied territories), such examinations are carried out in 28 institutions of municipal property and only in one state institution – the Ukrainian Scientific-Research Institute of Social and Judicial Psychiatry and Narcology of the Ministry of Health of Ukraine. Thus, approximately 99% of forensic psychiatric examinations are de facto conducted by non-state institutions. Imagine the situation in which the heads of these institutions appeared: it is not possible to close the expert departments, although they violate the restrictions imposed by the legislation on economic activity, and the prosecutor can visit and hint to them about the prospect of prosecution at any time.
Such a provision is certainly threatening for justice too, because when applying the provisions of the current law, the expert examinations conducted in non-state institutions may in fact be rejected as inadmissible evidence even without evaluating the experts’ conclusions. This situation creates the risk of manipulating legislation. Unfortunately, it is not only an assumption; it is a real judicial practice.
The existing limitations in the accessibility of an independent forensic psychiatric examination have already led to Ukraine violations of international obligations (see paragraph 113 of the judgment of the European Court of Human Rights in the case “Anatoliy Rudenko against Ukraine” dated April 17, 2014).
Fundamentals of Ukrainian legislation on health do not limit the range of subjects of medical practice of any medical specialty. Among the basic principles of health protection, the multifaceted economy, multi-channel financing, a combination of state guarantees for demonopolization and the promotion of entrepreneurship and competition are defined.
Of course, we can say that our expertise is not just a medical practice, it is a public activity. And that is true. But to date, the state monopoly has been completely abolished in such important spheres of public activity, as the notary, arbitration courts, professional appraisal activity, audit activity, the activity of arbitration managers.
Besides, the Verkhovna Rada of Ukraine, when adopting the laws on the regulation of entrepreneurial activity, pursued a policy of consistent demonopolization of those species that had previously been attributed to the state monopoly. In particular, the manufacture and sale of military weapons, the extraction of amber, the maintenance of networks and satellite telephone systems are demonopolized. Payment and delivery of pensions to low-income citizens…all these things are demonopolized. Obviously, it is time to bring the issue of forensic expertise in line with this part.
Today, everyone understands that limiting the range of subjects of judicial and expert activities related to the conduction of certain categories of forensic expertise, and monopolization of the market by the state institutions, is groundless both in legal and socio-economic aspect.