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THE BASICS OF APPLYING PRECAUTIONS AND SOME IDEAS AND
CONSIDERATIONS REGARDING THE RAKE
Jurabekov Tokhirjon Mamurjon ugli
Lecturer of the Department of Criminal Procedure Law,
Senior Lieutenant
https://doi.org/10.5281/zenodo.14550862
Annotation:
this article analyzes the fundamentals of the use of
precautions and the posessual tariff, what specific aspects exist for the use of the
precaution, what is taken into account by the interrogator, investigator for the
use of precautions and the precautions in contrast to other prosessual coercion
measures and relying on the opinions of his lawyers.
Keywords:
precautionary measures,procedural coercive measures,
detention, house arrest, bail, investigator, interrogator, prosecutor,suspect,
seducer, defendant.
As we all know, in the time of liberalization, above all lies the category
of freedom. In Western countries, wherever democracy is promoted, the
relationship between the "man – Society - State" has always been the center
of attention, even in the history of our national drumming. In particular, the
concepts of freedom and law are glorified as human values in Amir Temur's
Proverbs "where the law rules, there will be freedom".
Looking back on history, when law appeared on Earth and statehood
began to form and develop, the institutions of law also began to expand and
take their place. In the territory of our state, initially the rules of customs
were followed, then social relations began to be regulated, based on the
rules that arose on the basis of religious views [1].
In periods up to the century AD, until the arrival of Islam in our land,
heads of state (Khans) used unrestricted powers. Including in the field of
law enforcement, the decrees they issued were followed, as well as the
rules of military order. With the spread of Islam, legal relations were
regulated according to the rules of Islam and Sharia, along with the rules of
custom . We all know that in Islamic law, all social relations are perfectly
regulated. Including the procedure for conducting proceedings on crimes,
crimes, precautions, civil legal relations are defined in much more detail
[2].
For example, according to" Mukhtasar", Rahn means that the bet could
be applied if both parties agreed in a situation where the murder took place
[3].
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The person is not considered guilty under the presumption of
innocence until the sentence comes into force. But V.M.Savisky wrote
grieving that in practice, when an investigator or prosecutor accuses a
person and involves him in the case as a defendant, he is put in the ranks of
the guilty in his own right [4].
It remains only for the court to impose a penalty on this person. Cases
in this state of mind are rare nowadays. An example of this is the
strengthening of the control that the prosecutor takes over the use of
precautions.
Inogomzhonova Z.F., Paylaganova G. Z. In the opinion of the S,
precautions-measures of forced influence on the accused or the defendant,
taken before themselves:
1)evasion from preliminary investigation and trial;
2) prevention of criminal activity, which is likely to occur in the future;
3) to avoid attempts to determine the truth in the case;
4) sets the goals of ensuring the execution of the sentence [5].
Examples of cases not provided for in the jpk, which must be taken into
account when choosing a precautionary measure, can be the pregnancy of
the accused, his conscription, profession, trial, services before the
motherland, etc.
The conditions to be taken into account when choosing precautions
apply to the subjective right of the accused. Until the investigative div, the
Inquirer, the investigator, the prosecutor and the court's obligation to
choose a precautionary measure, cancel or change it is put as an alternative
to this. The subjective right of the accused or suspect is not part of the
content of the right to protection from prosecution. In this case, the
accused, while not denying the accusation, is protected from an
unreasonable limitation of his own freedom and personal immunity [6].
In addition to the above points, we can cite the following definition: as
a precaution, a criminal procedure in which an inquiry div, investigator,
prosecutor or court suspect, accused, defendant, defendant, prevents his
investigation and evasion of a convicted person or prevents him from
determining the truth in a case, prevents him from serving a sentence,
prevents him from continuing his criminal activities. It is also said to be
prosessual coercion measures that are used to ensure that the punishment
is served.
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Let's analyze the goals of enslaving the precautions presented in the
Criminal Procedure Code of the Republic of Uzbekistan.
The precaution is to prevent a suspect, accused, defendant from
questioning, preliminary investigation and judicial evasion – we must
understand the purpose of preventing the suspect, accused or defendant
from escaping, hiding during the preliminary investigation and judicial
investigation.
By preventing his criminal activity from this, we must understand the
purpose of committing another crime in order to hide the crime committed
by a suspect, accused or defendant, to prevent the commission of other
crimes that may be committed.
By not allowing his attempts to determine the truth in the case, we
must understand that a suspect, accused or defendant should not allow
himself to prevent the execution of Criminal – Procedural actions by certain
actions (for example, by turning witnesses to his side and changing their
instructions to his own beneficial side).
When it is known that the defendant intends to hide or commit a new
crime, the court of first instance will take action with the aim of ensuring
the execution of the sentence, the fourth purpose of applying the
precaution.
Again, we can also use precautions for the following purposes:
Precautions for persons who expect to be placed in a medical
institution for examination, who are also recognized as mentally ill or who
have mental illness after committing a crime, can be applied in order to
prevent them from hiding and committing other socially dangerous acts, as
well as to ensure the execution of a judicial verdict on the use of a
medically coercive measure.
The purpose and grounds for applying precautions are seriously
different from each other. The above goals should be real, the formation of
which should be relevant data, of course. The fact that the stated goals are
not themselves, but proven them can be the basis for choosing a
precautionary measure. It is necessary to prove that the person can hide
from the preliminary investigation and trial, hinder the execution of the
sentence, determine the truth in the case, continue criminal activity.
To choose a precautionary measure, it is enough to prove the
probability that the person to whom it should be applied will commit one of
the illegal actions listed above. In this case, the proof will focus on the
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forecast, that is, on the future realities. "How the defendant behaves,
whether or not to prevent the determination of the truth in the case is the
most significant, first –hand aspect of proof in this regard. The second side
of proof is that the conclusions contained in it are probable, approximate,
while the third side is an independent, autonomously provable case, in
addition to the general subject of proof in a criminal case" [7].
The proof will focus on the forecast, that is, the estimate of the future
realities. How a suspect, accused or defendant behaves, prevents or does
not determine the truth in a case is the most significant, first –hand aspect
of proof in this regard.
The second side of the proof is in the fact that the conclusions in it are
probable, approximate.
The third aspect is that it is an independent, autonomously provable
case, in addition to the general subject of proof in a criminal case".
This is what is known from practice, it is even more likely that the
suspect, accused or defendant wants to hide from the court, from the
preliminary investigation, prevent the fact from finding a decision, continue
criminal activity
it is also very difficult to prove, in some cases it is completely
impossible.
The presumption of how a suspect, defendant, or defendant might
behave would be appropriate to the severity of the crime he committed and
the seriousness of the verdict against him.
The fact that it is necessary to apply a precaution must be proven by
the evidence of the reflected qva, indicated in the criminal case. Only in this
case will it be possible to control the validity and legality of the choice of a
precaution when the prosecutor is investigating the case and the case is
pending in court. Its probable application presents great difficulties for
verification. For this reason, the probable application of the precaution
must be at a minimum.
Evidence supporting the conclusion that a suspect, accused or
Defendant intends to hide from the court, preliminary investigation,
prevent the fact from finding a decision, continue criminal activity is the
"basis of the grounds" for applying precautions. In the fair view of many
authors, it is impossible to include in this evidence facts obtained as a
result of operational-search activities, since at this time there will be no
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data on the probable behavior of the accused in a criminal case, and it is
very difficult to verify and evaluate them.
Sh.Inomzhonov believes that the use of the results of operational-
search measures as evidence can only be allowed if it is provided by a
person who clearly knows the source of origin of these objects, documents
and other materials and can testify about their authenticity and conditions
of receipt.
Even in reality, during the activities of operational-search authorities,
the necessary information can be collected, which is the basis for choosing
a precautionary measure. For example, information can be collected that
the accused is trying to hide, trying to persuade witnesses to lie, offering
material goods to the victim, etc. An employee of the operational-search
authority reports this information to the investigator. The investigator, on
the other hand, should not include these sources in the criminal case,
turning the messages received from them into judicial evidence through
interrogation and other procedural actions, and only then have the right to
issue a decision on the application of the precaution.
In this case, the investigator relies on the evidence contained in the
case when choosing a precautionary measure, while using the operational
information reported to him when evaluating this evidence. Such
operational information cannot be disclosed, which can hinder the
investigation of a criminal case. Undoubtedly, the careful use of such
operational information in the selection of a precaution in cases related to
imprisonment ensures a complete and high-quality conclusion of the work.
It is also necessary to use this information with caution when using lighter
precautions –safeguards of a personal and public Association, and tilkhat
measures about being in decent behavior.
Evidence is provided by the parties and other persons involved in the
case. The court may offer to provide them with additional evidence. While
providing additional evidence is a challenge for the parties and other
persons involved in the case, the court will assist them in gathering
evidence on their petition.
In addition to the grounds specified in the second part of Article 236 of
the CPC, when choosing a precautionary measure, it is necessary to take
into account the circumstances specified in Article 238 of this code, that is,
the severity of the guilt committed, the identity of the accused, the type of
training, age, health, marital status and other circumstances as a basis.
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These cases themselves can also serve as indirect proof that the accused
will hide from the court or preliminary investigation, prevent the fact of the
case from being determined, continue criminal activity. The presence and
addition of two cases of the same orientation with each other reinforces the
evidential importance of concluding the application of one or another
precaution. The presence of cases in different directions, on the other hand,
reduces the degree of proof of such a conclusion. The "assessment" of each
case may vary. In some cases, the decisive role is played by the severity of
the charge laid, while in other cases the age, sometimes the health, of the
accused is taken into account.
Therefore, when choosing a precautionary measure against the
accused, the following is taken into account: 1) evidence that confirms the
need to apply the precaution, that is, a "reasonable assumption" on the
phrase used in Article 236 of the JPG; 2) information about the severity of
the guilt, the identity of the accused and other circumstances listed in
Article 238 of the JPG. In both cases, sufficient grounds for the use of
precautions - reliable evidence darcor. They are considered by some
authors to be of two types, and common grounds – evidence of a socially
dangerous act and the person who committed it, and special grounds –
speak justly of evidence that proves that the suspect, accused, defendant
refuse investigation and trial, prevent the truth from opening up, engage in
criminal activity again.
The above can be stated in terms of Section 236 (1) and (3) of the CPC
of the Republic of Uzbekistan as follows: "to carry out the duties of
prosecuting criminal cases only if precautions are a real necessity in
criminal proceedings, the defendant must be charged (in exceptional cases
to the suspect, as well as to the defendant, as to the defendant, until;
prevent his criminal activity from this; prevent his attempts to determine
the truth in the case; apply for the purpose of ensuring the execution of the
sentence
Precautions for persons who expect to be placed in a medical
institution for examination, who are also recognized as mentally ill or who
have mental illness after committing a crime, can be applied in order to
prevent them from hiding and committing other socially dangerous acts, as
well as to ensure the execution of a judicial verdict on the use of a
medically coercive measure.
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When deciding which of the precautions to use, the Inquirer, the
investigator, the prosecutor, the court also takes into account the severity
of the conviction, the identity of the accused, the type of training, age,
health, marital status and other circumstances. The precaution may be
applied, overruled, and amended by an Inquirer, investigator, prosecutor's
decision, and court ruling.
In the decision or ruling on the application, cancellation, amendment of
the precaution: what crime the person is accused of committing; what legal
grounds the precaution was applied or the absence or change of these
grounds by making relevant evidence; it is necessary to indicate reasons
that affect the choice of the precaution, taking into account the
circumstances established by law, explaining the need to A decision or
ruling is immediately published to the person to whom it is issued.
Criminal liability is not one. Perhaps a separate decision will be made
on the choice of precautions for each person in cases where several persons
are being taken.
Typically, under Section 229 (1) of the jpk, the precaution can be
applied only to the defendant, the defendant, the convict, and persons
whose intelligence is recognized as noraso or who have mental illness after
committing a crime. In exceptional cases, court-ordered detention, house
arrest, or bail-style precautions may be used against a suspect held under
Section 226 (3) of the jpk. In this case, the suspect must be charged within
ten days from the date of his capture. Otherwise the precaution is lifted and
the individual is released from prison or house arrest, while the lien is
returned to the lien. After the criminal case has been brought and during
the entire period of detention, the Inquirer and investigator who applies
the proceedings can carry out investigative actions within their
competence to determine the circumstances of the commission of the
crime, to verify that the detention is justified. In addition the case is also
covered in Section 239 (2) of the jpk: "in exceptional cases, judicial
detention, house arrest, or bail-style precautions may be applied to a
suspect held in the pre-trial phase of proceedings".
When choosing a precautionary measure, it is important to take into
account the circumstances mentioned in Article 238 of the CPC. This norm
indicates the severity of the guilt imposed in addition to the circumstances
provided for by Article 236 of the CPC, the identity of the accused, the type
of training, age, health, marital status and other circumstances.
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Thus, the presence of grounds for choosing a precautionary measure
provides an opportunity to apply it only if there are a number of legal
conditions::
1) the precaution is chosen only in the case of a criminal case, which is
triggered bymumkin;
2) the precaution may not be more severe than the possible criminal
punishment for the accused (e.g., the Criminal Code of JPG Section 242 (1)
provides for more than three years 'imprisonment for intentional crimes as
well as negligence, for which the Criminal Code applies for crimes with
more than five years' imprisonment;
3) the condition for the application of any precaution is the attraction
of a person as a defendant. The exception to this rule is that after the initial
detention of the suspect, precautions in the manner of detention, house
arrest or bail may be applied (Article 226 Part 3 of the JPG).;
4) the precaution can be applied to the relevant subject, i.e. the person
who has reached the age of criminal liability (Article 17 of the JC).Also
according to Part 3 of Article 236 of the JPG, precautions for persons who
expect to be placed in a medical institution for examination, who are also
recognized as mentally ill or who have mental illness after committing a
crime, can be applied in order to prevent them from hiding and committing
other socially dangerous acts, as well as to ensure the execution of
Under the general rule enshrined in Article 239 of the jpk, the
precaution can be applied only to the defendant, the defendant, the convict,
and persons whose intelligence is recognized as noraso or who have mental
illness after committing a crime.
The issue of precautionary measures against foreign citizens and
stateless persons is decided in the order appropriate to the detention.
Immunity of the accused person is better guaranteed when the right to
apply precautions applies to the scope of officials and bodies strictly
defined by law. They include a law INQUIRER, an investigator, a prosecutor
and a court in their Order (Section 238, Section 240 (1) of the jpk).
In accordance with the Criminal Procedure Law, the Inquirer, the
investigator, the prosecutor have the right to apply, amend and revoke any
precautionary measure in a criminal case, which is in his possession by his
decision, and the court has its own judgment.
The Inquirer, the investigator will take precautions in his or her
conduct of criminal cases or on certain assignments. In accordance with
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Section 37 (3) of the jpk, the head of the Investigative Department,
Department, Division, Group and his deputy have the right to give written
instructions to the investigator on the selection, modification and
cancellation of the mandatory precautionary measure. Precautions are not
clearly defined in the list of actions in which the instructions of the chief
may not be carried out in connection with the complaint of them to the
prosecutor. But when the investigator does not agree with such
instructions regarding imprisonment and the choice of a house arrest-style
precaution, he has the right to submit his objections to the prosecutor with
a written statement. In this case, the high-ranking prosecutor either cancels
the chief's instruction by his decision or transfers the Proceedings of the
investigation into the case to another investigator. If the chief's
instructions apply to other precautions, the appeal of them to the
prosecutor will not prevent their execution, unlike imprisonment (Section
36 (3), Section 37 (4) of the JPG).
On the basis of a petition filed by the prosecutor or, with his
permission, the Inquirer, the investigator, the court authorizes a
precautionary measure in the manner of house arrest and imprisonment
(Article 243 of the JPG).
The prosecutor takes the case into action and uses the right of the
investigator in the selection of precautions (article 382 of the CPC).
The prosecutor's written instructions on the issue of choosing,
changing or canceling the precautionary measure are mandatory for the
investigator (article 382 of the CPC Part 3 Paragraph 4).
The Inquirer has the right to present the case to the superior
prosecutor by stating his objections in writing if the investigator does not
agree with the prosecutor's instructions for house arrest or imprisonment
as a precaution. In this case, the higher-ranking prosecutor either cancels
the lower-ranking prosecutor's instruction by his own decision or hands
over the investigation of the case to another investigator (Article 36 Part 3
of the jpk).
Использованная литература:
1.
Muqimov Z. History of the state and law of Uzbekistan. - T., 2003.
2.
Muqimov Z. History of the state and law of Uzbekistan. - T., 2003.
3.
Mukhtasar (a brief commentary on Sharia law.)- T., 1994.
4.
Savisky V.M., Larin A.M., Melnikov E.V. Ugolovny prosess Rossii. Lektsii,
ocherki. / Pod red.:
5.
P.A.Lupinskoy. - M.: Yurid. lit., 1997
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6.
Inogomzhonova Z.F.Tolaganova G. Z. "Problems of criminal proceedings".
T-2006.
7.
Inogomzhonova Z.F.Tolaganova G. Z. "Problems of criminal proceedings".
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