International Journal of Law And Criminology
24
https://theusajournals.com/index.php/ijlc
VOLUME
Vol.05 Issue05 2025
PAGE NO.
24-27
10.37547/ijlc/Volume05Issue05-03
Issues of Developing the Adversarial Principle at The
Pre-Trial Stage of Criminal Proceedings
Seytnazarov Kurbanbay Reimbaevich
Associate professor of Karakalpak state university, named after Berdakh, PhD in law, Uzbekistan
Received:
23 March 2025;
Accepted:
19 April 2025;
Published:
21 May 2025
Abstract:
This article explores the theoretical and practical dimensions of implementing the adversarial principle
at the pre-trial stage of criminal proceedings. The relevance of the study stems from the growing need to ensure
procedural equality and the right to legal defense not only at the trial level but also during the inquiry and
preliminary investigation phases. The research aims to analyze existing legal norms, identify procedural gaps, and
assess opportunities for enhancing the rights of the defense. Utilizing comparative legal analysis, synthesis,
deduction, and observation, the study examines both national legislation and international best practices. The
findings demonstrate that the adversarial principle is insufficiently applied before trial due to the lack of
procedural status for participants, limited defense counsel involvement, and imbalanced functions between
investigative and prosecutorial authorities. The study suggests introducing institutional reforms, including judicial
oversight mechanisms and expanded powers for defense attorneys, to ensure genuine adversarial proceedings
throughout all stages of the criminal process. These findings can be applied in legal reform initiatives, judicial
training programs, and policy-making aimed at aligning Uzbe
kistan’s criminal justice system with constitutional
and international human rights standards. The research concludes that ensuring the adversarial principle at the
pre-trial stage is essential for upholding fairness, transparency, and the rule of law.
Keywords:
Adversarial principle, pre-trial proceedings, inquiry, preliminary investigation, procedural rights,
prosecutorial oversight, criminal justice reform.
Introduction:
One of the key factors in the
development of a legal state and society is the
existence of well-established institutions that
effectively protect human rights and legitimate
interests. It is well known that the formation of any
system, the provision of its functioning, and its
continuous improvement primarily depend on the
presence of a supportive legal framework and
economic stability.
According to statistical data, the internal affairs bodies
of the Republic received the following number of
crime-related applications and reports: 91,636 in 2021,
74,817 in 2022, and 24,970 in the first five months of
2023. A comparative analysis of the number of
registered applications and reports was conducted to
identify trends in criminal activity. The results of the
study show that in 2022, the number of crime-related
applications and reports decreased by 16,819
compared to the figures of 2021 [1].
It is well known that the participation of a defense
attorney in criminal proceedings may begin not only at
the trial stage, but even prior to the initiation of a
criminal case. This suggests that elements of the
adversarial principle can, at least partially, be observed
at all stages of the criminal process. There are differing
opinions in the legal literature on this matter.
According to some scholars, “the adversarial principle
can be fully realized only during the trial stage”. In th
is
regard, Professor G. Tulyaganova’s assertion that “the
application of the adversarial principle and its
integration into the pre-trial investigation stage can still
be considered a largely unimplemented issue in
practice” [2] serves as a noteworthy addi
tion to the
above-mentioned viewpoint.
METHODS
This study analyzes issues related to the development
of the adversarial principle at the pre-trial stage of
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International Journal of Law And Criminology (ISSN: 2771-2214)
criminal proceedings by utilizing both national and
foreign legislative norms, as well as the theoretical
perspectives of legal scholars. The research employed
comparative legal analysis, analytical and synthetic
approaches, observation, generalization, induction,
and deduction methods in the examination of relevant
materials.
DISCUSSION AND RESULTS
In recent years, numerous reforms have been
implemented in Uzbekistan aimed at improving the
pre-trial stage of criminal proceedings. In particular,
significant progress has been made in enhancing the
institution of pre-investigation checks. Notable among
the reforms are the Law of the Republic of Uzbekistan
No.442 of September 6, 2017, “On Amendments and
Additions to Certain Legislative Acts of the Republic of
Uzbekistan in Connection with the Improvement of the
Inquiry Institution”, the Presiden
tial Decree of May 14,
2018, “On Measures for the Radical Improvement of
the Criminal and Criminal Procedure Legislation
System”; the Presidential Decree No.6041 of August 10,
2020, “On Measures to Further Strengthen Guarantees
for the Protection of Human Rights and Freedoms in
Judicial and Investigative Activities” and the
Presidential Decree No.60 of January 28, 2022, “On the
Development Strategy of New Uzbekistan for 2022
–
2026”. These normative legal acts emphasize the
importance of enhancing the role and significance of
the pre-investigation stage in promptly and thoroughly
solving crimes, preventing criminal offenses, and
protecting the interests of individuals, the state, and
society. Special attention has also been given to
strengthening the procedural status and rights of the
subjects involved in pre-investigation proceedings
during the pre-trial phase.
In the doctrine of criminal procedure law, as well as in
legal literature, four types (or models) of criminal
procedure are distinguished: adversarial, accusatory,
inquisitorial, and mixed [3]. The issue of determining
the typology of criminal procedure is closely related to
the principles that are implemented in practice.
Through the structure of these principles, their system,
mechanisms of action, and other related aspects, it is
possible to identify the form of criminal procedure. A
review of the existing criminal procedure legislation
shows the presence of the adversarial principle. The
application of the adversarial principle in cases heard
by the first and appellate courts corresponds to the
content of the basic principles of criminal procedural
law. However, the concept that “the adversarial
principle should only apply at the trial stage” should not
be the limit, and special attention must be given to the
development of mechanisms for applying this principle
throughout the entire criminal process. This is because
one of the key requirements for a criminal process in
the adversarial model is the equal distribution of
procedural functions between the participants at all
stages of the process. In the inquiry and preliminary
investigation stages, the suspect and the accused have
rights and obligations that ensure the adversarial
principle (Articles 46 and 48 of the Criminal Procedure
Code). However, a t
hird party, such as an “arbitrator”
essential for adversarial proceedings, is absent.
Certainly, ensuring the adversarial principle leads to
the realization of the defense attorney’s rights and the
expansion of their procedural capabilities. In this
regard
, legal scholar D. Bazarova emphasizes that “the
measures being implemented to reform the institution
of advocacy are aimed at ensuring the equalization of
the procedural rights of the prosecution and defense
parties in the criminal process” [4]. In modern
scholarly
works and legal literature, scholars emphasize the
proposal to expand the scope of the adversarial
principle and implement it in the inquiry and
preliminary investigation stages as well [5].
However, according to the opinion of many scholars,
“a
n adversarial relationship between the investigator
and the accused is not possible during the preliminary
investigation, as at this stage the functions of
accusation, defense, and decision-making are not yet
present” [6]. V. Bozhyev, on the other hand, ar
gues that
the adversarial principle is not applied at all stages of
the criminal process because:
a) there is no equality between the parties;
b) the subjects responsible for the proceedings mix the
functions of investigation, accusation, and decision-
making, and the prosecutor, in addition to the
accusatory function, also supervises the legality of the
investigation and inquiry;
c) at the pre-trial stage, the function of decision-making
is carried out not by the court, but by the investigative
bodies and the prosecutor;
d) at these stages, the court has no role in deciding the
case [7].
Furthermore, in our opinion, the lack of a clearly
defined legal status for the individuals involved in the
first stage of pre-trial criminal proceedings
–
the pre-
investigation stage
–
leads to violations of their
procedural rights. This situation undoubtedly leads to
the conclusion that it is not possible to implement the
adversarial principle during the pre-investigation stage.
According to B.K. Khudaybergenov’s views on t
he rights
of participants in the pre-investigation process, the
procedural status of the participants involved in the
initiation of criminal proceedings is considered
problematic. This is because, under national legislation,
International Journal of Law And Criminology
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International Journal of Law And Criminology (ISSN: 2771-2214)
there are no procedural statuses such as the victim or
the suspect during the pre-investigation process, and
these statuses are determined only after the initiation
of a criminal case. Additionally, since the complainant
does not have a procedural status under the Criminal
Procedure Code, it can be assumed that they also do
not have procedural rights [8]. On the other hand, B.B.
Khidoyatov argues that “since the pre
-investigation
check is the initial stage of the pre-trial proceedings, all
participants in this stage must be able to use all
procedural rights and obligations” [9].
Indeed, one of the problems associated with the pre-
investigation process is the absence of concepts such as
“the person conducting the pre
-
investigation check”,
“the victim”, and “the person under investigation”
as
well as their respective rights and obligations in
criminal procedural law. In our opinion, to ensure the
adversarial principle at the initial stages of the criminal
process, it is essential to first define the procedural
status of the participants and specify their procedural
rights and obligations.
In the pre-investigation check, a number of
investigative and procedural actions are permitted. For
instance, Article 221 of the Criminal Procedure Code
outlines four grounds for detaining a person suspected
of committing a crime. In particular, paragraph 3 of this
article states that the discovery of clear traces of the
crime on the person, their clothing, or at their place of
residence may serve as grounds for detention. It is well
known that under this provision, a person suspected of
committing a crime may be detained until the criminal
case is initiated, as outlined in Article 224 of the Code.
What is noteworthy is that it remains unclear how clear
traces of the crime on a person or their clothing may be
identified through procedural or investigative actions.
In our opinion, in such a case, the need for a witness
examination investigative action arises. This is because
the norms of the Criminal Procedure Code related to
inspection do not establish a procedure for inspecting
a person’s div. It is suggested that it can be conducted
under Articles 142-147 of the CPC. That is, the
identification of traces of the crime on the person’s
div, such as scratches, bruises, bloodstains, and
marks, can only be identified through a witness
examination investigative action in criminal procedure
law.
From these conclusions, it can be inferred that even
when a person is detained before the initiation of a
criminal case, a witness examination is necessary. This,
in turn, requires clarification of the issue of conducting
a witness examination before a criminal case is
initiated. It should be emphasized here that during the
witness examination process, in addition to gathering
evidence necessary for the case, it is also possible to
achieve the resolution of the crime.
The implementation of the adversarial principle in the
criminal process serves as a guarantee for the
protection of individual rights and freedoms. In order
to ensure equal rights for both the defense and
prosecution, the court, while maintaining impartiality
and objectivity, creates the necessary conditions for
the parties to fulfill their procedural obligations and
exercise their granted rights. An analysis of the French
and German legal systems shows that they do not have
an institution for pre-investigation checks. In these
systems, investigation and criminal prosecution are
conducted based on complaints and reports of crimes.
During these stages, to maintain balance, provide equal
opportunities to the parties, and strengthen the
principles of adversarial proceedings, a judicial
investigator is active. Furthermore, all participants
possess a procedural status and have the opportunity
to exercise all their rights and obligations.
The principle of adversariality should be applied from
the pre-trial stages of a case. Indeed, the application of
the adversarial principle during the pre-trial
proceedings does not only reflect the defense
attorney’s activities in relation to the investigator’s
tasks of collecting and presenting evidence. It also
manifests itself in establishing control over the legality
of the actions of the prosecution side and ensuring that
the person’s rights and legal interests are freely
implemented using the methods and means permitted
by law, with the help of the defense attorney.
To summarize, proponents of applying the adversarial
principle during the pre-trial stages argue that its
application results in:
Firstly, the expansion of the rights of the defense
attorney during the pre-trial process.
Secondly, it increases the opportunities for both parties
to appeal to the court.
CONCLUSION
Accordingly, it is imperative that reforms in judicial and
investigative practice extend beyond superficial
modifications to include the introduction of new
approaches and regulatory frameworks aligned with
contemporary legal standards. Given that the principle
of adversarial proceedings is enshrined in international
legal instruments, it must not be confined solely to trial
hearings in courts of first instance or courts of higher
jurisdiction. Rather, it should be operational
throughout all stages of the criminal process, including
pre-trial procedures.
In this context, and with the aim of clarifying its
doctrinal content, the following definition of the
adversarial principle in pre-trial proceedings is
International Journal of Law And Criminology
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International Journal of Law And Criminology (ISSN: 2771-2214)
proposed:
“The adversarial principle in the context of pre
-trial
proceedings encompasses the presence of opposing
parties, each actively and equally presenting
substantiated perspectives concerning the case. The
court, in turn, assesses this information as evidence
and exercises judicial oversight over the conduct of
both the prosecution and the defense”.
In practical terms, it is of paramount importance to
ensure genuine equality of procedural rights between
the parties and to establish an environment conducive
to adversarial proceedings. This entails removing
procedural barriers faced by suspects, accused persons,
and defense counsel during the inquiry and preliminary
investigation phases, and enhancing their procedural
safeguards in a manner consistent with the
fundamental right to a fair trial.
The study highlights that the development and
effective implementation of the adversarial principle at
the pre-trial stage of criminal proceedings is a critical
component of ensuring procedural justice and
safeguarding fundamental rights. Although the
adversarial structure is well-established in the trial
phase, its application in the preliminary investigation
and inquiry stages remains limited due to procedural
imbalances and underdeveloped legal frameworks. The
research reveals that the lack of a clearly defined
procedural status for participants, insufficient access to
legal counsel, and the dominance of investigative
authorities impede the realization of genuine
adversarial proceedings before trial. Comparative
analysis of foreign legal systems indicates that
integrating elements such as judicial oversight, equal
access to evidence, and expanded defense rights at
early stages can significantly enhance fairness and
transparency. Therefore, to align with international
standards and constitutional guarantees, reforms must
prioritize
procedural
equality,
establish
the
institutional presence of defense mechanisms during
pre-trial proceedings, and promote the active
participation of all parties. Implementing these
changes will not only strengthen the adversarial nature
of the criminal process but also contribute to the
advancement of rule of law and human rights
protection in Uzbekistan.
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