Volume 04 Issue 01-2024
26
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
01
Pages:
26-31
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article highlights the essence of the institution of preliminary securing of impressions and analyzes the circle of
participants in the process of securing impressions. Also, having studied foreign experience, conclusions, proposals
and recommendations were made for the preliminary confirmation of the testimony of both an expert and a specialist.
KEYWORDS
Testimony, reinforcement, witness, victim, civil plaintiff, expert, expert, law, freedom, participants in the process.
INTRODUCTION
Preliminary recording of evidence is one of the
procedural actions that must be performed by the
court on the basis of procedures related to the judicial
investigation, and is a special type of interrogation.
Before a scientific analysis of the forensic investigative
action associated with interrogation, it is worth
clarifying precisely the concept of the investigative
action.
In the legislation of most foreign countries, the
institution of preliminary securing of testimony is
reflected in the sense that testimony is subject to
judicial bail. In this way, the testimony of witnesses and
victims is preserved and corroborated in advance. The
National Encyclopedia of Uzbekistan gives a
broader description of the word “deposit” (Latin
depositum - contribution, deposit) -
“deposits in a
bank, securities (shares and bonds) transferred for
storage to credit institutions, as well as funds.[1]”
In the explanatory legal dictionary of the English
language, the concept of “bail” is interpreted as the
interrogation of a witness or parties before the start of
trial in criminal and civil courts. Deposit indicators are
performed orally, and at this time questions are asked
to the depositor (interrogated).[2] Also in the legal
sphere of foreign countries - giving testimony,
Research Article
THE ROLE OF PARTICIPANTS IN THE PROCESS IN THE PRELIMINARY
RECORDING OF TESTIMONY
Submission Date:
January 01, 2024,
Accepted Date:
January 05, 2024,
Published Date:
January 09, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue01-05
Muhammadaliev Minhojidin Qurbonali Ogli
Doctoral Student Of The Faculty Of Postgraduate Education Of The Academy Of The MIA Of The Republic Of
Uzbekistan., Tashkent, 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 01-2024
27
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
01
Pages:
26-31
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
expressing the meaning of giving testimony under
oath[3].
According to the national Criminal Procedure Law, it is
established that only the testimony of the witness,
victim and civil plaintiff is corroborated in advance. For
this reason, it is important for us that we study
individuals individually, whose assessments are
reinforced in advance.
Among the persons whose testimony is recorded in
advance, one of the main ones is the witness, and in the
legislation the witness is classified as another person
participating in the criminal process. Any person who
may know the circumstances to be established in a
criminal case may be summoned to testify as a witness
(Article 66 of the Code of Criminal Procedure).
The explanatory dictionary defines the concept of a
witness as “a person who saw with his own eyes the
events that occurred or was specially called to the
place where the event occurred in order to confirm
that they really occurred.” On the other hand, the
concept of “evidence” is interpreted as “evidence of
what someone saw or knew; to be a witness[4].”
Witness testimony plays a key role in most criminal
cases. Therefore, the process of evidence in a criminal
case is unthinkable without the testimony of
witnesses.
The second person whose testimony is recorded in
advance is the victim, and the victim is considered one
of the persons representing his interests in criminal
proceedings.
A victim is an individual or legal entity who has suffered
moral, physical, or material damage as a result of the
commission of a crime, as well as as a result of a socially
dangerous act or an act that entailed a real risk of
causing such harm, if there is evidence confirming the
commission of a crime[5].
Scientist-lawyer T.N. Tillaev believes that the victim is
the subject of the criminal process and only after the
inquirer, investigator or prosecutor makes a decision or
decree recognizing him as a victim, he becomes a
victim[6].
In accordance with our criminal procedural legislation,
the testimony of a civil plaintiff can also be recorded in
advance (Article 1212 of the Code of Criminal
Procedure). They are involved as civil plaintiffs if there
is evidence that a crime or the act of an insane person
who poses a public danger caused harm to an
individual, enterprise, institution or organization
(Article 56 of the Code of Criminal Procedure).
Relations related to a civil claim in a criminal
proceeding arise in accordance with Article 276 of the
Code of Criminal Procedure from the moment a person
who has suffered property damage as a result of a
crime or a socially dangerous act committed by an
insane person files a claim orally or in writing. If the
inquiry officer or investigator who received this
statement of claim really believes that this person has
suffered property damage, he issues a decision
recognizing the person as a civil plaintiff in accordance
with Article 277 of the Code of Criminal Procedure. A
civil action may be filed with a criminal complaint
during the time between the initiation of the criminal
case and the commencement of the trial. The
difference from the victim is that not only individuals,
but also legal entities can be involved as civil
plaintiffs[7].
According to our current criminal procedural
legislation, the circle of persons whose testimony is
subject to preliminary corroboration includes only the
witness, the victim and the civil plaintiff, of whom there
Volume 04 Issue 01-2024
28
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
01
Pages:
26-31
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
is no mention of preliminary corroboration of the
testimony of other participants in the process.
Accordingly, expanding the circle of persons whose
testimony is recorded in advance not only ensures the
completeness of the process of proof in the case, but
also serves to ensure the rights and freedoms of the
individual, as well as the effective implementation of
the tasks of criminal procedural law.
As you know, the issue of ensuring a full and fair
consideration of the case by preliminary securing the
testimony of the witness and the victim is of particular
relevance. A.S. Gambaryan and A.S. Simonyan believes
that it becomes very important for both the witness
and the victim to corroborate the testimony of an
expert or specialist in advance. Because only an expert
who has given the exact same opinion will be fully
informed and will be able to give accurate evidence to
give more clarity to the expert's conclusion during the
trial[8]. Therefore, we must consider the possibility of
including an expert and specialist in the circle of
participants in the process, whose testimony will be
recorded in advance.
In most cases, when considering a criminal case during
the trial, the expert and specialists who gave an
opinion on the criminal case are called in, and their
conclusions are clarified through questioning. The
reason for the petition of the defense attorney or one
of the parties to the case may also be petitions for the
emergence of additional questions about the need to
clarify the expert’s conclusion.
Experts and specialists may be summoned to trial in the
following cases:
- the emergence of additional new questions regarding
the pre-trial conduct of the case or its conclusion made
at the trial stage;
- in order to clarify the conclusion made during pre-trial
proceedings in the case or at the trial stage;
- if any misunderstandings arise regarding the given
conclusion and the need to substantiate them;
- if the court deems it necessary to check the
conclusion of the expert who gave the conclusion,
through additional questioning, whether it is written
correctly;
-
if the expert’s conclusion is not clear enough and
there is no need to conduct an additional check to fill
the deficiencies;
- when it becomes necessary to clarify the methods
used by the expert.
The expert's testimony is accepted for the purpose of
clarifying and explaining his conclusion. An expert can
be questioned only on the basis of the conclusion he
has made and the expert examinations he has
personally conducted. It is prohibited to interrogate an
expert until he gives an opinion[9].
It is worth noting that in some cases the expert who
gave the opinion of the trial or the expert who gave
evidence cannot be provided. This is due to the fact
that he may have gone on a long business trip or, due
to a serious deterioration in health, gone abroad,
leaving his career as an expert. And the above
problems can be solved by first confirming the
testimony of an expert.
When pre-fixing testimony, the intended goal is not
achieved by calling an expert different from the expert
who gave an opinion on the case. The reason is that no
one other than an expert who has done exactly the
same research on each given conclusion will have
sufficient information, and it would be logically
incorrect to question it. In addition, since each expert's
Volume 04 Issue 01-2024
29
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
01
Pages:
26-31
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
research methods are different, another expert cannot
explain how the study conducted the methods.
Therefore, during the preliminary investigation, it will
be necessary to interrogate exactly the expert who
gave the opinion and confirm his testimony in advance.
When studying the norms of criminal procedural
legislation of foreign qualifications governing this
procedural rule, one can observe:
1) Article 26 of Chapter 198-201 of the Code of Criminal
Procedure of the Kyrgyz Republic specifies the
institution of preliminary corroboration of testimony,
which establishes that only the testimony of the victim
and witness can be corroborated[10];
2) Article 217 of the Code of Criminal Procedure of
Kazakhstan also establishes that preliminary recording
of testimony is only possible for the victim and
witness[11];
3) Article 225 of the Code of Criminal Procedure of
Ukraine establishes that, unlike the legislation of other
states, in addition to the victim and witness, the
testimony of a captured serviceman, taken in
accordance with the decision of an authorized person,
can also be supported in advance[12];
4) Article 109 of the Code of Criminal Procedure of the
Republic of Moldova establishes that only the
testimony of a witness is subject to preliminary
confirmation[13];
5) Article 691 of the Code of Criminal Procedure of the
Republic of Estonia establishes that, as in the
legislation of the Republic of Moldova, only the
testimony of a witness must be recorded in
advance[14];
6) Article 173 of the Code of Criminal Procedure of the
Republic of Lithuania also states that, as in the
legislation of most countries, the testimony of the
victim and witness can be recorded in advance[15].
According to the above, the legislation of almost all
states provides for the possibility of pre-recording the
testimony of a witness, while in some states, namely
the Kyrgyz Republic, the Republic of Kazakhstan, the
Ukrainian Republic and the Lithuanian Republic, in
addition to the testimony of a witness, the testimony
of the victim can also be pre-recorded. However, only
the Code of Criminal Procedure of Ukraine states that,
in addition to the victim and the witness, it is possible
to corroborate in advance the testimony of a captured
serviceman, in accordance with the decision of an
authorized person. In addition, we see that the
legislation of all the foreign countries analyzed does
not reflect the preliminary confirmation of the
testimony of an expert or specialist.
When discussing the participants in the process, whose
testimony will be recorded in advance, we consider it
advisable to expand the circle of these persons,
including in it, in addition to the witness and the victim,
an expert and specialist. We believe that in this way we
achieve an increase in the efficiency of the institution
of preliminary confirmation of testimony and thus
ensure greater completeness of the work.
Also in the questionnaire, conducted to study the
opinion of the inquirer, investigator and judges, the
question is asked: “which participants in the process
would be advisable to include in the circle of persons
to whom testimony will be assigned in advance? the
fact that 80% of respondents answered that “the
expert and specialist must be included in the circle of
persons whose testimony will be recorded in advance”
also indicates the relevance of this problem in forensic
investigative practice today.
Volume 04 Issue 01-2024
30
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
01
Pages:
26-31
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
In addition, during our study of sentences in criminal
cases available in the Angren City Court dated June 11,
2022, it was found that when required to interrogate
several experts and specialists during the judicial
investigation, they, for various reasons, traveled
outside of Uzbekistan or for health reasons do not
have the opportunity to interrogate them[16].
Based on the above considerations, it is necessary to
amend Article 1211 of the Code of Criminal Procedure
and state them in the following wording:
“Preliminary confirmation of evidence consists of
interrogating a witness, victim (civil plaintiff), expert
and specialist at the request of the prosecutor at the
stage of pre-trial proceedings in the case, which is
carried out by the court according to the rules of trial
provided for by this Code.”
It is necessary to amend part one of Article 1212 of the
Code of Criminal Procedure and state them in the
following wording:
In cases where there is reason to believe that the
interrogation of a witness, victim (civil plaintiff), expert
and specialist for objective reasons (travel outside the
Republic of Uzbekistan, the presence of a serious and
long-term illness that precludes participation in
criminal proceedings) will become impossible for pre-
trial proceedings or subsequent trial, their testimony
may be pre-recorded.
It is also necessary to amend part one of Article 1214 of
the Code of Criminal Procedure and state them in the
following wording:
Preliminary recording of the testimony of a witness,
victim (civil plaintiff), expert and specialist is carried
out in accordance with Article 442 of this Code in a
court hearing with the participation of the inquirer,
investigator, prosecutor, suspect, accused, his defense
attorney and, if necessary, other participants in the
process in compliance with the order interrogation in
court.
The implementation of the above proposals, along
with a full and objective consideration of criminal cases
in practice, contributes to the adoption of a fair
decision.
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International Journal Of Law And Criminology
(ISSN
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VOLUME
04
ISSUE
01
Pages:
26-31
SJIF
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MPACT
FACTOR
(2021:
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705
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5.
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6.
584
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–
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Oscar Publishing Services
Servi
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