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ASPECTS OF PROOF IN CRIMINAL INVESTIGATION IN THE
REPUBLIC OF UZBEKISTAN SPECIFIC TO FOREIGN EXPERIENCE
Yakubov Bekzod Erkinbaevich
Chairman of Bogot district court of Khorezm region for criminal cases
https://doi.org/10.5281/zenodo.15852192
Abstract
: This article examines the types of operational investigative
activities, the implementation of operational investigative activities and the
main tasks of operational investigative activities and measures to ensure the
legality of the results of activities, the legality of evidence collected during
operational investigative activities, and provides scientific, theoretical and
practical recommendations on the basics of using this evidence as the main
means in the investigation of crimes, as well as in proving guilt at a court
hearing. At the same time, the opinions and reasoning of theoretical scientists
and experienced employees were analyzed.
Key words:
operational investigative activity, type of event, operational
experiment, prosecutorial supervision.
Introduction
.
The search activity has been cooperating with the judicial and investigative
activities for two centuries. It is precisely its tasks to expose, solve crimes, and
identify and find the perpetrators who should subsequently be transferred to
the judicial and investigative bodies. Attitudes and approaches to investigative
activities may vary. However, since its necessity cannot be denied on any
grounds, this activity has always been and even now continues to be at the stage
of development, and exists in all countries as the main tool for combating crime,
and this activity will never lose its relevance at all times.
Conducting investigative activities is the process of implementing a set of
operational and other measures against persons who are reasonably suspected
of committing or committing crimes, in order to prevent or solve their crimes, as
well as to identify and detain hidden criminals, if it is impossible to achieve the
goal in other ways or if this is extremely difficult.
It is necessary to have reasons and grounds for making a decision to
conduct an operational search based on the tasks of combating crime. The use of
existing information in criminal cases as evidence contradicts the essence of
judicial and investigative proceedings, its procedural form, and the rule on the
use of only procedural means of proof provided for by law, since the German
Criminal Procedure Code states that it is unacceptable to use operational
information that has already been received in criminal proceedings as evidence,
to convert this information into judicial evidence by questioning officials
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(operational officers) conducting operational search activities, and persons
involved in the case. [1]
According to the experience of many foreign countries, other non-
traditional methods that are not covered by the activities of judicial
investigation bodies are also used to uncover, expose and prove crimes, such as
interrogation under various mental pressures, using a polygraph - lie detector,
extrasensory perception, and biorhythmology. Such methods cannot serve as a
scientific and moral basis for evidence in a criminal case during the period of
judicial investigation.
Because only the real and clear source of information within the framework
of the criminal case should be relevant to the subject of proof, the relevance of
the evidence to the criminal case and the compliance with the requirements of
the evaluation of the evidence should be considered important for the legal
resolution of the case. [2]
When analyzing foreign experience, the Swiss legislation lists the ten most
important features of the main means of proof of evidence collected on the basis
of the results of investigative activities, namely: - the rules on proof are part of
the subject of criminal legislation; - only authorized state bodies are recognized
as the subject of proof; - the burden of proof is imposed only on the party
supporting the accusation; - the amount of evidence is not limited; - free
assessment of evidence without any exceptions; - if acceptable evidence is
obtained in an unacceptable way, it is also considered unacceptable; - the theory
of asymmetry is not recognized, i.e. equal requirements are imposed on the
evidence of the defense and the prosecution; -examination of evidence is not
considered an independent element of independent proof; -the requirement of
admissibility of evidence; -the distinction between two elements of proof,
namely the collection and evaluation of evidence. [3]
These cited cases show that in the essence of the nature of evidence, such
important factors as the reliability, admissibility or inadmissibility of evidence,
the indisputability of related evidence, and the requirements imposed on them
play a special role.
At the same time, the legislation of many foreign countries includes the
assessment of evidence obtained or collected as a basic principle in the
detection, disclosure and proof of crimes, for example, in the Criminal Procedure
Law of the State of Germany, there is a principle of assessing and proving
evidence according to the internal conviction of the court itself, which is
manifested in the following, namely: - in assessing evidence and proving the
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criminality of the act, the judge's personal conviction of the criminal's guilt is of
decisive importance and is considered necessary and sufficient for sentencing; -
when assessing evidence, the judge's reasonable doubt that the defendant
committed an act deserving criminal punishment negates the issuance of a guilty
verdict (in dubio pro reo); - there is a limit to the assessment of evidence based
on the judge's internal confidence (formal limit - logic, the judge's arguments
must be clear, coherent, and free from contradictions, the judge must act in
accordance with generally recognized and natural-scientific rules formed on the
basis of accumulated experience); - when assessing evidence, the court is
required to comprehensively and completely examine the evidence; - evidence
prohibited from use by the court when assessing evidence is not taken into
account and this evidence cannot be taken into account in making a verdict and
proving it. In the Criminal Procedure Law of the Russian Federation, the subject
of proof also evaluates the evidence collected as a result of operational-search
activities based on his internal confidence, the law, and his conscience. [4]
In foreign countries, including the USA, Great Britain, Poland, and Germany,
lawyers in criminal cases where the results of search and seizure activities have
been revealed or opened, also conduct independent investigative work in order
to collect evidence aimed at protecting the rights and interests of the accused
within the framework of this criminal case, and even in Germany, a lawyer, along
with the persons responsible for conducting the criminal case, has the right to
independently investigate the circumstances of the case and conduct a parallel
investigation. [5]
In addition, according to the legislation of the USA and Slovenia, upon the
application "Affidavit" submitted to the court for conducting a search and
seizure and investigation, the judge must first consider the circumstances and
suspicions that require a search and seizure, and also take into account the
following, namely: - taking into account the work of the operative or investigator
conducting the search and seizure or investigation activity, and the experience
in solving crimes; - the circumstances that are the basis for conducting a search
operation or the reasonableness of the suspicion must be taken into account; -
before granting consent to conduct a search operation, the judge must take the
oath of the operative officer or investigator responsible for conducting this
operation, stating that he has been warned about giving false testimony; - it is
sufficient for the judge to approve the request for permission to conduct a
search operation with his signature, without drawing up a separate judicial
document on the consent to conduct this operation; - the investigative judge
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who authorized the conduct of this operation may also directly participate in the
procedural processes related to the conduct of a search operation or
investigative operation; - In urgent cases, bodies carrying out search and
investigation activities may call a judge to conduct searches and other
investigative actions requiring sanctions, fully explain the situation, and obtain a
sanction over the phone. This decision may be formalized in the form of a
decision within twenty-four hours after the event and submitted to the court for
sanction. [6]
In our opinion, since the rule in Article 67 of the Criminal Procedure Code of
Ukraine that “The subject of proof is a set of circumstances that must be proven
in each criminal case” and the sentences in Part 1 of Article 81 of the Criminal
Procedure Code of the Republic of Uzbekistan that “whether a socially
dangerous act has occurred, whether the person who committed this act is guilty
or innocent” do not fully cover the circumstances that must be proven in each
criminal case, it is advisable to amend Part 1 of Article 81 of the current Criminal
Procedure Code with a new rule that “Any information that serves as a basis for
the inquiry officer, investigator, prosecutor and court to determine, in
accordance with the procedure established by this Code, the presence or
absence of circumstances that are subject to proof in a criminal case, as well as
other circumstances that are important for the correct resolution of the case,
shall be considered evidence in a criminal case.”
In addition, electronic (digital) devices in the conduct of criminal cases In
order to establish an effective mechanism for exposing crimes committed
through electronic means, it is of great importance to develop instructions for
collecting, procedurally recording and using digital (electronic) evidence, as well
as instructions for obtaining and examining digital (electronic) evidence with
the participation of a specialist, in order to further increase the efficiency of the
activities of the evidence assessment entity.
Because, if we look at the
experiences of developed countries such as Japan, South Korea and Singapore, in
these countries, the procedural processes related to conducting an online search
or investigative action have been implemented for several years and have
yielded positive results in judicial and investigative activities, and therefore
show their significant features in collecting evidence. [7]
As we have seen above, in the course of the operational measures carried
out in accordance with the operational search activities and legislation of foreign
countries, in the course of the operational measures carried out in accordance
with the legislation of foreign countries, in the assessment of the objects
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(objects) and documents obtained, found and collected as a result of the
measures as evidence and in proving the criminality of the committed act or its
exclusion, there are specific experimental bases in judicial and investigative
practice, which requires the improvement of the activities aimed at
implementing operational activities in the detection of various types of hidden
or overt crimes in judicial and investigative activities, learning from world
experience.
One of the most important factors in proving a crime detected during the
judicial investigation is the identification and verification of initial information
about the signs of the crime during the conducted operational-search measures,
the collection of samples for comparative examination, the verification and
registration of information about persons engaged in criminal activity and
participating in the commission of the crime, ensuring the completeness of the
div of evidence in the criminal case and gaining full confidence in issuing a
verdict of guilty for the defendant's commission of the crime using such methods
of proof as:
List of used literature:
1. B.A. Filimonov Fundamentals of the theory of evidence in the German process.
– Moscow. “Spark”. 21.05.2001. p. 107.
2. Abdumajidov G.A. The essence and consequences of confession. Study guide. –
Tashkent “TDYUI”. 09.07.2006. p. 12-13.
3. A.A. Trefilov Desyat osobennostey instituta dokasyvaniya v ugolovnom
processe Svetsarya: sravnitelno-pravovoy analysis. Journal of zarubezhnogo
zakonodetelstva and sravitelnogo pravovedeniya. 12.04.2017. p. 111-112.
4. Z.Z. Zinatullin Ugolovno-procesualnoe dokazivanye. Uchebnoe posobie.-
Izhevsk. "Jurid" 04.09.2001. p. 147-148.
5. Salomov B.A. Advokatskaya deyatelnost, eyo garantii i sotsialnaya zashchita
advocates in the Republic of Uzbekistan. - Tashkent. "TDYuI". 29.08.2005. p.
319-320.
6. Wohlers W. Kommentar zur Schweizerischen Strafprozessordnung. - Zurich.
"StPO". 23.11.2010, p. 78-79.
7. Sh.Kh. Inomjonov Problems of Proof Theory. Study Guide. –Tashkent. “TDYU”
06.09.2006. p. 77-78.
