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(ISSN
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Oscar Publishing Services
Servi
ABSTRACT
This article can be seen as a meaningful continuation of the reforms that have been implemented in mamalakatımızı
in recent years, the policy in our country for the protection of human rights and legitimate interests, the position of
each person as a person in the country and, in our president's words, the idea of "first man
–
then state bodies". In
article, some proposals and recommendations have been developed in order of the constitution of the republic of
Uzbekistan adopted in a new edition to provide a legal representative counsel who can adequately protect the rights
and freedoms of people in cases when a socially dangerous act is committed by mentally retarded or mentally
disturbed people or persons whose mental state is temporarily disturbed after committing a socially dangerous act,
as well as that, some problematic issues arising in connection with the participation of the legal representative counsel
in the judicial investigation practice were studied in detail. The proposals and recommendations cited in the article will
contribute to the appropriate protection of their rights and interests and the provision of a legal representative in the
application of medically enforced measures against persons who committed a socially dangerous act in a state of
mental disorder in the future.
KEYWORDS
Constitution, legal representative counsel, participation of legal representative counsel, coercive medical measures,
mental retardation, mental disorder, rights and obligations of the legal representative counsel, waiver of the legal
representative counsel, provision of rights and freedoms.
Research Article
THE IMPORTANCE OF THE PARTICIPATION OF A LEGAL
REPRESENTATIVE IN THE IMPLEMENTATION OF PROCEEDINGS ON THE
APPLICATION OF COMPULSORY MEASURES IN A MEDICAL WAY AND
IMPROVING ITS PLACE IN THE CRIMINAL CASE
Submission Date:
February 06, 2024,
Accepted Date:
February 11, 2024,
Published Date:
February 16, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue02-06
Sayfullayev Bahodir Bakhromovich
Independent researcher of the University of public safety of the Republic of Uzbekistan, senior literature,
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
35
International Journal Of Law And Criminology
(ISSN
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Oscar Publishing Services
Servi
INTRODUCTION
One of the essesntial guarantee of the rights, freedoms
and legal interests of the persons involved in the
application of coercive medical measures is the
participation of a legal representative in the case.
Criticizing the Code of Criminal Procedure of the
Republic of Uzbekistan, we would like to point out that
there is no mandatory requirement of the law on the
participation of a legal representative in proceedings
on the application of coercive medical measures.
Mandatory participation of the legal representative in
the cases of the application of coercive medical
measures is limited not only with Articles 570 and 571
of the Code of Criminal Procedure of the Republic of
Uzbekistan, but also with the phrase “recognized as
incompetent according to the fixed
procedure”, which
is not clearly reflected in Article 60 of the Code of
Criminal Procedure, where the concept of legal
representative is presented in turn, it remained
abstract without giving a complete understanding. In
addition, Section 3 of Part 1 of Article 580 of Code of
Criminal Procedure, which deals with the extension,
modification or termination of coercive measures in
the medical direction, and the restoration of
proceedings in general order, indicates the right to
“file a petition”. In our poin
of view, the scope of the
involvement of a legal representative in Chapter 61 of
the Code of Criminal Procedure of the Republic of
Uzbekistan is not really perfect, and this leads to
criticism among procedural scholars, because criminal-
procedural legislation, more than any other thing that
is included in the sphere of personal interests and
involves the restriction of the human and civil rights
and freedoms, it should be clear in its rules and not
open to ambiguous interpretation. Due to the fact that
the participation of a legal representative in this
category of cases is not established in the Code of
Criminal Procedure, the study of several criminal cases
showed that in all cases, legal representatives did not
participate in the proceedings on the application of
coercive medical measures. This indicates that
practitioners understand that it is not necessary to
involve this participant in the process in cases of the
category under consideration.
A.S.Dezhnev noted “participation of a legal
representative in the criminal proceedings is an
additional guarantee of ensuring the rights and
freedoms of vulnerable levels of the population, that
is, minors and mentally disturbed persons. Legal
representative call to fill their missing capacity” ,
accordingly, despite the importance of the
participation of a legal representative in proceedings
on the application of coercive medical measures, the
definition of this participant does not exist in the
criminal procedural legislation. Article 549 of the Code
of Criminal Pr
ocedure on “prosecution of criminal
cases of a special category” defines the participation of
the legal representative of minors in the case, and it is
incomprehensible that legal representatives of
persons suffering from mental illnesses are not
involved in this category of cases. In Chapter 5 of the
Code of Criminal Procedure of the Republic of
Uzbekistan, among the participants in the criminal
proceedings on the part of the defense, only the legal
representatives of the minor suspect, the accused, and
the representatives of the person subject to the
application of coercive medical measures are
indicated, without indicating that representatives can
participate. In Chapter 61, which is devoted to
proceedings on the application of coercive medical
measures, this participant is not defined, at the same
time, Articles 570 and 571 of the Code of Criminal
Procedure of the Republic of Uzbekistan do not
mention representatives’ participation in the case. As
can be seen, the representatives are ignored as a
participant of this type of criminal proceedings. In this
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regard, we consider it necessary to supplement Article
5701 of the Code of Criminal Procedure of the Republic
of Uzbekistan and title it in the following version:
“Participation of a legal representative i
n the cases of
applying coercive medical measures”. The supplement
to this article as follows:
“The participation of a legal representative is
mandatory in cases with coercive medical measures.
By the decision of the investigator or interrogator, the
participation of the legal representative is allowed
from the time of appointment of the forensic
psychiatric expertise, and the rights shall be explained
according to Article 61 of this Code”.
Representation is not an institution that came into
being yesterday or today, but has developed in a
certain way in all periods of human development. The
representative institution sees its role in the
implementation of rights and duties and the protection
of their legal interests in the following cases:
- ensures the timely implementation of rights and
obligations of subjects in society;
- helps individuals to exercise their rights and
obligations;
- prevents violation of legal rights and freedoms of
individuals;
- It is important in the development of the society
related to ensuring the stability of mutual legal
relations between subjects and performing other tasks
.
According to Article 66 of the Code of Civil Procedure
of the Republic of Uzbekistan, “the rights and legally
protected interests of incompetent or disabled
persons are protected in court by their legal
representatives, parents, adopters, guardians, and
sponsors”. In connection with the consolidation of the
main functions of legal representatives in civil law
–
the
protection of the rights and interests of guardians,
many authors conclude that these functions are the
same in criminal-legal and criminal procedural
relations. The rules established in civil law apply to
other relations in the sphere of law, including criminal-
legal and criminal proceedings.
Y.B.Samoilova
and
V.L.Sogoyan
consider
the
procedural process involves hospitalization of a person
who has committed a socially dangerous, not only
restricting a person’s freedom, but also restricting the
full protection of their rights during the preliminary
interrogation and trial, they emphasized that the
person’s defender and legal representative should
participate in the preliminary interrogation and trial .
E.V.Sukhoverkhova believes that in this type of criminal
cases, before the conclusion of the forensic psychiatric
expertise, it is necessary to ensure the participation of
a legal representative, starting from the fact that the
interrogator and the investigator have documents
indicating that the mental state of the person is
disturbed (medical institution certificate, medical
history, etc.) . Agreeing with this opinion, A.Y.Koptyaev
said that “as soon as the investigator and interrogator
receive the first information about the mental state of
the suspect or the accused, they should provide the
person with a defender and a legal representative in
the criminal case” .
E.Z.Troshkin and A.S.Zakharov believes that the
function of protecting the rights and legal interests of
people is not a special authority and is not only related
to the field of civil-legal relations, but also to criminal-
legal and criminal procedural relations, in this regard,
the authors conclude on the procedure for attracting
legal representatives, determining the fact of the
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participation of a certain person as a legal
representative in a criminal case by issuing an
appropriate decision . We also support this point of
view, “It should not be about making a decision to
recognize a person as a legal representative (he is
recognized as such due to the law), but about allowing
him to participat
e in criminal proceedings”.
According to A.Y.Koptyaev, it is necessary to make a
decision on the participation of a legal representative,
because this procedure is traditional in criminal
proceedings, and in addition, “the decision on the
participation of a legal representative contains
information about the person, participation as a legal
representative and the time when he entered the
criminal case. “Questions about the permission of the
legal representative of a mentally disabled person to
participate in a criminal case, that is, making a decision
in the form of an authorized document, must remain
within the authority of the interrogator and the court”
.
We support the opinion of the majority of authors and
believe that it is necessary to issue a decision on the
involvement of a legal representative in the case of the
application of coercive medical measures, because this
document determines the stage at which this
participant was involved in the criminal case, which can
play a decisive role in the criminal case, later in the
process of evaluating the evidence. However, such a
decision should not be called “on the recognition of a
person as a legal representative”, but “on the
involvement of a legal representative in the cases of
applying coercive medical
measures”. In practice, in
most of the cases we have studied, the following
words appear: “the person as a legal representative”,
which, in our opinion, is not at all correct in relation to
the arguments presented earlier about the need for
medical enforcement proceedings in the relevant
circumstances.
In addition, the time when the legal representative of
a mentally ill person enters the criminal process is a
controversial issue.
In J.A.Bajukova’s opinion, if the legislation acts contain
the necessary materials about the impossibility of a
person’s participation in criminal proceedings due to
mental illness and health, the involvement of a legal
representative should be carried out by the
interrogation at the initial stage of the interrogation.
The author proposes to resolve the issue of further
participation of this participant in the criminal
proceedings, depending on the results of the forensic
psychiatric expertise .
L.G.Tatyanina proposes to solve the issue of the
possibility of participation of a legal representative in
determining whether a person has severe mental
illness or not. Meantime, if a person suffering from a
mental illness is found to be mentally disabled or
partially sane, which makes it difficult for him to
express his interests independently, his legal
representative shall participate in the case with
consent. If this participant is introduced late in the
proceedings, the evidence collected shall be deemed
inadmissible . A similar point of view is, also, stated in
R.I.Shageeva’s research
.
M.Sh.Bufetova considers it necessary to involve a legal
representative of a person suffering from a mental
illness from the moment of the appearance of
documents indicating the presence of a mental illness
(medical certificate, medical history, testimony of
witnesses) .
A.Y.Koptyaev noted “the time of compulsory
participation of the legal representative of a mentally
ill person in a criminal case is the time to obtain
relatively reliable information about the mentally ill
person’s
mental
illness
(referen
ce,
medical
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documents) before a decision is made to appoint a
forensic psychiatric expertise and, accordingly, before
receiving an expert opinion” .
E.Z.Troshkin, A.S.Zakharov connects the time of
involvement of a legal representative in cases of this
category with the interrogator’s decision to appoint a
forensic psychiatric expertise .
We support the position of scientists who believe that
there is no need to wait for the conclusion of a forensic
psychiatric expertise to involve a legal representative
in the process. Before the decision to involve a person
as a legal representative, a decision on the
appointment of a court psychiatric expertise,
information about the possible mental illness of a
person, confirmed by other materials of the criminal
case (data from medical institutions, medical history,
medical information, testimony of witnesses, relatives,
acquaintances, etc.) should be accepted as they
appear.
The legal representative of the person who is being
investigated for the application of coercive medical
measures against him shall protect the rights and legal
interests of the person, he represents through the
rights granted by Article 61 of the Code of Criminal
Procedure of the Republic of Uzbekistan.
In our opinion, the legal representative of the person
subject to the application of coercive medical
measures should be given a complete list of the rights
of this person, because often the state of mental
disorder deprives the participants of this category of
criminal proceedings from independent exercise of
their rights. In this regard, we propose to supplement
the existing list of rights of a legal representative with
the right to testify. In the criminal cases we studied,
legal
representatives
were
questioned
by
interrogators as witnesses, and the rights granted to a
particular participant in the criminal process were
explained to them. In our opinion, the status of witness
and legal representative are incompatible. The
interests of the participants in this category are
different and the range of rights granted to them is
also fundamentally different in proceedings for the
application of coercive medical measures. The legal
representative should have the right to refuse to
testify against the person he or she is representing if
the testimony given by the legal representative could
form the basis of evidence that would require the use
of medical coercive measures in the future. Based on
Article 66 of the Code of Criminal Procedure of the
Republic of Uzbekistan, it is clear that a legal
representative may refuse to testify against a person
who is not a spouse or a close relative of the
representative, but it is not clear what to do. It seems
logical to give this class of participants the option not
to testify against the person they represent.
In our opinion, according to the above, expanding the
list of evidence provided in Part 2 of Article 81 of the
Code of Criminal Procedure of the Republic of
Uzbekistan with the instructions of the legal
representative is appropriate and has a positive effect
on the protection of the legal interests of persons
suffering from mental illnesses.
Taking into account that the person he represents has
the right to use the procedural rights he has in
accordance with the Code of Criminal Procedure,
provided with in Part 1 of Article 61 of the Code of
Criminal Procedure of the Republic of Uzbekistan, the
legal representative has the right to present evidence,
in our opinion, this rule is declaratory in nature because
the legislature did not specify the method of collection
of such evidence. In addition, the legal representative
does not have the right to study the evidence
presented in court. E.V.Sukhoverkhova, in her
re
search, studied S.V.Gusevani’s opinion, according to
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this, S.V.Guseva “proposes to give the legal
representative the right to check the evidence” . L.G.
Tatyanina noted “the legal representative should have
the right to examine the evidence, because during the
investigation, questions may arise that can be resolved
by filing a petition” .
Summarizing the above, we propose to state part 1 of
Article 61 of the Code of Criminal Procedure of the
Republic
of
Uzbekistan
as
follows:
“Legal
representative shall have following rights: to be
informed that the person he represents has been
summoned to the inquiry, interrogator, prosecutor’s
office or court; free meeting with the incarcerated
person he represents; the person he represents has
the right to exercise the procedural rights he has in
accordance with this Code and to collect evidence by
obtaining materials, documents and other information,
to present it to the interrogator and the court, as well
as to conduct additional research in court cases”.
L.G.Tatyanina draws attention to the need to give legal
representatives the right to freely communicate with
the participant in the criminal process whom they
represent, without limiting the number and duration of
interviews (taking into account medical instructions).
Agreeing with this point of view, we note that such
visits can have a positive effect on the investigative
process (a person suffering from mental illness can
provide his legal representative with the information
necessary for a criminal case), as well as contribute to
the recovery of a person’s health while continuing to
use coercive medical measures.
In addition to granting rights, we impose certain duties
on the legal representative of a person suffering from
a mental disorder, including: the obligation to appear
when summoned by the interrogator and the court;
exclusion of negative influence on the specified
person, both from our side and from the outside; we
mean not to disclose information known in a criminal
case.
A legal representative participating in proceedings on
the application of coercive medical measures is an
independent participant in the criminal proceedings,
who protects the rights and legal interests of a person
suffering from a mental illness. It should be
remembered that in most cases, the legal
representative acts as the representative’s guardian or
sponsor, and according to Articles 996, 998 of the Civil
Code of the Republic of Uzbekistan, committed by an
incapacitated citizen or an able-bodied person,
because he assumes material responsibility for the
damage caused by his inability to understand the
meaning of his actions or to guide them. Thus, the legal
representative is a person who has an interest in the
production process and can try to protect his rights
and prove the innocence of the person for whom they
are responsible in order not to pay for the damage
caused. On this basis, legal representatives may
influence the representative adversely, try to persuade
him to give false testimony, or harm the
representative.
It is known that a legal representative should not only
harm the interests of the person represented, but also
take an active position in protecting his rights and
interests. “The legal representative cannot be
indifferent to the progress and result of the process,
the interrogator and the court should take this fact into
account. The person who is interested in providing real
assistance to the mentally retarded, specified in Article
60 of the Code of Criminal Procedure of the Republic
of Uzbekistan, should act as a legal representative,
otherwise his participation is a simple formality . In this
regard, we suggest that, in case the personal interests
of the legal representative are disclosed, it is necessary
to provide for the possibility of excluding him from
participation in the criminal case in the law.
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If there is sufficient evidence that the actions of the
legal representatives in the case may harm the rights
and property interests of the mentally deficient and
mentally ill suspects and defendants, or may prevent
the discovery of the truth in the case, then the
interrogator, prosecutor and the court are sufficient to
resolve and prevent them.
We should recognize that there are no means of
holding the legal representative of the person subject
to medical coercive measures to account for improper
performance of his duties, which may lead to the
violation of the rights of people who are already
vulnerable in the legal sense of the category of persons
suffering from mental disorders.
According to the above, we believe that it is possible to
determine the cases and procedure for exclusion of a
legal representative from participation in the case on
the application of coercive medical measures in Article
437 of the Code of Criminal Procedure of the Republic
of Uzbekistan, and we suggest that Part 4 of this article
should be supplemented with the following content:
“Medical coercive measures (criminal case), if there is
a reason to believe that his actions will harm the
interests of the person against whom medical coercive
measures are applied, whose application is being
considered. The interrogator shall make a decision on
this. In this case, another legal representative of the
person who is being investigated for the application of
coercive medical measures against him shall be
allowed to participate in the criminal case”.
Thus, the legal representatives of the persons who are
subject to the application of coercive medical
measures against them are mandatory participants in
this category of cases. Therefore, the list of rights of
the legal representative should be completed and
clarified. There is a practical need to supplement it with
the right to testify, as well as to expand the right to
present evidence. It is necessary to ensure the
possibility and procedure of excluding the legal
representative from participation in the proceedings.
These measures help to strengthen the criminal-
procedural status and guarantees of the persons who
are being processed for the use of coercive medical
measures.
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