Volume 04 Issue 02-2024
47
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
47-51
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
It is perceptible that a number of requirements are stipulated regarding the specialist in the process of proof by virtue
of analyzing the Criminal-procedural Code of the Republic of Uzbekistan. The disinterestedness and worthwhile
elements of the profession in performing the tasks assigned to the specialists as indispensable part of these
requirements are vitally important in the criminal procedural relations. Ultimately, the lack of special knowledge of
the specialists involved in the case shows their incompetence for their profession and inhibits them to participate in
the proceeding.
KEYWORDS
Specialist, requirement, interest, competence, incompetence, incompetence to the professional activity, criminal
proceeding.
INTRODUCTION
The laws require to be improved as the society
develops. This, in turn, affects the criminal procedural
legislation. Analyzing the criminal procedural law, it is
apparent that the need to theoretically improve some
concepts specified in the criminal procedural law and
to regulate the criminal procedural relations by
clarifying them in the future.
The first and foremost is expedient to clarify the issue
of the expert’s suitability or incompetence for his
profession as there are various requirements for the
Research Article
THE SPECIALIST AND APPLICABLE REQUIREMENTS IN THE CRIMINAL-
PROCEDURAL LEGISLATION OF THE REPUBLIC OF UZBEKISTAN
Submission Date:
February 06, 2024,
Accepted Date:
February 11, 2024,
Published Date:
February 16, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue02-08
Rashidov Bekhzod Nurboevich
Doctor Of Legal Sciences (Dsc), Professor Head Of The Department Of Criminal-Procedural Law Of The
Academy Of The Mia Of The Republic Of Uzbekistan, Uzbekistan
Abduvakhobov Sherzodbek Abduvakhobovich
Teacher Of The Department Of Criminal-Procedural Law Of The Academy Of The Mia Of The Republic Of
Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
Volume 04 Issue 02-2024
48
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
47-51
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
specialist in the process of proof in the criminal
proceedings.
***
The requirement of disinterestedness of the specialist
is stipulated in the rules of the Article 76 and the first
part of the Article 78 of the Criminal-procedural Code
of the Republic of Uzbekistan. According to them, if
there are reasons to believe that the specialist is
personally, directly or indirectly interested in the
results of this criminal case, he cannot participate in
the criminal proceedings. The specialist should be
rejected
in
the
presence
of
such
cases.
Disinterestedness in the result of proceeding is one of
the main requirements for the specialist. The
participation of specialist interested in the results of
the case in a criminal proceeding may lead to the
inadmissibility of the evidence obtained with his
participation, in accordance with the Article 951 of the
CPC1.
The specialist does not have the right to participate in
criminal proceedings in the following cases and should
be rejected in accordance with the first part of the
Article 76 and the Article 78 of the current Criminal-
procedural Code. In other cases, such as:
1)
if the specialist participates in this case (or
participated in the case before) as a victim, civil
plaintiff, civil defendant, expert, interpreter, impartial
witness, witness, defender, as well as a legal
representative of the suspect, accused, defendant, or
as a representative of the victim, civil plaintiff, civil
defendant
2)
if the specialist is a legal representative of an
official responsible for conducting this case or a victim,
civil plaintiff, civil defendant, expert, interpreter,
impartial witness, defender, suspect, accused,
defendant or representative of the victim, civil plaintiff,
civil defendant in this case if one of them is a relative;
3)
if there are other suspicious circumstances in
terms of assigning the specialist as impartial witness.
If the specialist previously participated in the conduct
of this case as an official of the div conducting the
preliminary
investigation,
as
an
investigator,
interrogator, prosecutor, secretary of the court
session, s/he cannot participate in the conduct of the
same case in the future according to the second part of
the Article 76 and the first part of the Article 78 of the
current Criminal-procedural Code.
It is obvious that the specialist should not have any
interest in the conduct of the case by virtue of the brief
analysis of the Articles 76 and 78 of the CPC of the
Republic of Uzbekistan. According to the requirements
of these norms of the law, the specialist’s interest in
the results of the criminal case excludes his/her
participation in the criminal proceedings.
The specialist must be considered to be interested in
the results of the criminal case, and he must not be
allowed to participate in the criminal case in the
following circumstances:
1) if the specialist is a victim, civil plaintiff, civil
defendant or a witness in this criminal case;
2) if the specialist participated in the proceedings of
this crime in another capacity;
3) if the specialist is one of the participants in the
proceedings in this criminal case and has a close
relative or relatives;
4) if the specialist is dependent on the parties or their
representatives for service or otherwise;
Volume 04 Issue 02-2024
49
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
47-51
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
5) if the specialist’s incompetence (lack of knowledge,
lack of competence) is determined;
6) if the specialist is in a friendly, kindly or hostile
relationship with the persons interested in the results
of the criminal case.
The term of “interest” (Arabic
- benefit, interest,
income) refers to material, spiritual, physical and other
(visible) benefits [1].
“The interest” is a system of activities carried out by an
individual, person, people, nation, publics, state and
society in order to gain some benefit, materially,
morally, physically and in other ways, based on the
requirements of the necessary objective and subjective
factors that have arisen in the existing reality”[2, P.
161
–
168].
According to the second part of the Article 78 of the
CPC, the specialist’s previous participation as a
specialist in the criminal proceedings is not considered
a reason to reject him/her, therefore, it is not a basis for
considering that s/he is interested in the results of this
criminal case. Therefore, the specialist’s participation
in the investigation and other procedural actions
several times and for different purposes does not
cause the evidence obtained in the course of these
procedural actions to be considered inadmissible.
The requirement that the specialist should not be
subordinated to any of the persons involved in the case
in terms of service or in any other way comes from the
content of the first part of the Article 78 of the CPC.
The essence of this requirement stipulates that the
specialist should not be subordinate to the service or
otherwise to the judge participating in case, as well as
a public adviser, prosecutor, investigator, interrogator,
official representative of the div conducting
preliminary investigation, secretary of the court
session. Moreover, the specialist should not be
dependent to a victim, civil plaintiff, civil defendant,
expert, specialist, interpreter in this case, impartial,
witness, defender, legal representative of the suspect,
the accused, the defendant, or the representative of
the victim, civil plaintiff, civil defendant and so forth.
Regrettably, it is observed that the requirements of
this norm are not always followed in the investigative
practice.
The list of cases in which the specialist should be
rejected is not limited to this basis. The specialist as
well as other participants in the criminal proceedings
may also be rejected on the grounds provided for in
parts 1-3 of the Article 78 and the paragraphs 1-3 of the
first part of the Article 76 of the Criminal-procedural
Code.
If the specialist presents evidence confirming his/her
direct or indirect interest in the results of the case, s/he
has the right to refuse to participate in the case
(paragraphs 1, 3 of the Article 76, 1, 3 of the Article 78
of the CPC). The specialist may be rejected if there are
reasonable causes to believe that the specialist is
personally, directly or indirectly interested in the
results of the criminal case.
The requirement that the specialist’s competence for
his profession comes from the contents of the second
part of the Article 78 of the CPC. |If the specialist is
found to be improper for his profession, he cannot
participate in a criminal case in accordance with the
second part of the Article 78 of the CPC. Therefore,
professional qualification (competence) is one of the
main requirements stipulated by law on a specialist.
The content of this requirement is not wholly defined
in the law, and there are different approaches to its
definition in the criminal-procedural literatures.
A number of scholars attempt to define the meaning of
the concepts of “professional competence” and
Volume 04 Issue 02-2024
50
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
47-51
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
“professional
incompetence”. Henceforth, it is
commonly noted that the professional incompetence
is “the absence or lack of special knowledge and
practical skills necessary to solve issues related to the
implementation of this or that investigative action put
before th
e specialist” [3, P.18].
It can be agreed with the above statement on
“professional incompetence”. In our opinion, having
special knowledge, skills, practical experience and the
ability to apply them in practice means that the
specialist is “professional competent”, while having
special knowledge and not being able to apply them in
practice is regarded as “professional incompetence”.
A.V.Konstantinov defines the concept of “professional
competence” as “the specialist’s having deep
specialized knowledge, confirmed by the presence of
appropriate
education,
professional
and
life
experience” [4, P.124].
We cannot fully agree with A.V.Konstantinov’s views
on the concept of “professional competence”.
Because it is not necessary for a person with special
knowledge to have relevant education, it is also
possible to understand that the subject achieves
special knowledge through life, practical or
professional experiences.
A.G.Smorodinova emphasizes that the existence of
special knowledge and skills in a certain sphere of
science, technology, art or practical activity is not the
only thing that determines the professional
competence of specialist, the significance is to what
extent the specialist has mastered the techniques and
methods of applying these knowledge and skills [5,
P.78
–
79].
In our opinion, A.G.Smorodinova explained in more
detail the concept of “professional competence”. We
believe that these opinions are justifiable, because it is
necessary to acquire knowledge and skills and be able
to use them effectively at the same time, so that the
specialist can be professional competent.
It can be concluded based on the above that
“professional competence” means not only the
possession of special knowledge, but also practical
skills related to their application and the ability to use
them effectively.
B.T.Bezlepkin defined the term “professional
incompetence” as the absence of the necessary special
knowledge, but also the skills to apply them in practice,
in a person engaged as a specialist [6, P. 166].
From our perspective, it would be appropriate to agree
with B.T.Bezlepkin’s comments on “professional
incompetence”. Although a brief definition of this
concept was given, it was able to fully explain this
concept from the point of view of meaning.
E.B.Melnikova highlighted “a person’s la
ck of special
knowledge” in defining the content of “professional
incompetence” [7, P. 8]. From our personal standpoint,
it is impossible to agree with E.B.Melnikova’s opinions
in this regard. Because the fact that a person does not
have “special knowledge” indicates the “professional
incompetence”, but the “professional incompetence”
of a specialist reflects a broader meaning than “having
special knowledge”. More clarification is, the specialist
does not have the skills to apply the acquired
knowledge in practice, the ability to effectively use this
knowledge is not formed.
To our way of thinking, “professional incompetence”
means a person who does not have special knowledge
or practical skills for their application, and does not
have the ability to use them effectively.
CONCLUSION
Volume 04 Issue 02-2024
51
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
47-51
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
In conclusion, it is vitally important to have special
knowledge of the specialist, the “professional
competence” directly to participate in the case of
criminal
procedural
relations.
The
specialist’s
professional incompetence creates difficulties and
shortcomings in the collection, formalization and
research of evidence in the process of proof. The
specialist’s participation in the case should not be
limited to having special knowledge. In particular, one
of the most important c
onditions is the specialist’s
possession of special knowledge and skills in their
application. Furthermore, the fact that the specialists
involved in the case have an interest in the results of
the case leads to the illegal registration of evidence in
the future and prevents the impartiality of the
evidence or the comprehensive consideration of the
proceeding.
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ли
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https://n.ziyouz.com/books/uzbek_tilining_izohli_l
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Манзура Холмирзаева. Жамият ва инновациялар
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А.В.
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Смородинова А.Г. Проблемы использования
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Безлепкин Б.Т. Комментарий к Уголовно
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процессуальному
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