Volume 03 Issue 06-2023
24
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
06
Pages:
24-37
SJIF
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FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article scientifically researches the theoretical and legal aspects of the mechanisms for ensuring the rights of the
individual in the criminal process. The article also analyzes the scientific views of scientists on the theoretical aspects
of the mechanisms of ensuring the rights of the individual in the criminal process.
KEYWORDS
Mechanism, law, standard, crime, criminal procedure, investigation.
INTRODUCTION
The content of the mechanisms of ensuring personal
rights in the criminal process is made up of criminal-
procedural norms and tools aimed at ensuring personal
rights and freedoms, as well as the activities of state
bodies and individuals responsible for ensuring
personal rights and freedoms.
At the stages of criminal proceedings, in particular,
from the investigation to the investigation, from the
initiation of the criminal case, its investigation,
appointment to court hearing, the substantive hearing
of the case in court and the adoption of court
documents (sentence, decision) based on the result,
the execution of the sentence (sentence, decision)
providing
entities
are
important
institutional
foundations in the system of the mechanism for
ensuring individual rights.
In this regard, the proceduralist scientist V.Yu.
Melnikov defined the concept of "the mechanism of
ensuring, implementing and protecting individual
rights through the criminal process" as a set of
procedural and legal elements, tools and methods that
ensure the functioning of the entire criminal process in
a certain sequence according to the purpose. At the
same time, according to this scientist, the category
"mechanism
for
ensuring,
implementing
and
protecting individual rights" itself consists of the
following elements: legal norms that strengthen
Research Article
PROCEDURAL MECHANISM OF PROVIDING PERSONAL RIGHTS:
THEORETICAL AND LEGAL BASIS
Submission Date:
June 02, 2023,
Accepted Date:
June 07, 2023,
Published Date:
June 12, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue06-06
Dildora Bazarova
Head Of Department Of Criminal-Procedural Law Of Tashkent State University Of Law, Professor., 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 03 Issue 06-2023
25
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
ISSUE
06
Pages:
24-37
SJIF
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FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
individual rights and freedoms; legal facts of the
emergence and termination of these rights and
freedoms; the activities of the participants in the
criminal proceedings, who are engaged in ensuring the
guarantees of individual rights; special legal
procedures designed to ensure, implement and
protect individual rights and freedoms; Institute of
legal responsibility [ 1].
According to L.M. Volodina, in the context of the
concept of the mechanism of ensuring individual rights
in the criminal process, the system of legal tools and
methods related to the goals and tasks of the criminal
process and the legal status of the participants in the
process should be understood. [ 2].
E.G.Martynchik stated that the mechanism of ensuring
and protecting the rights of individuals in the criminal
process is the internal coordinated system of state
bodies that conduct criminal proceedings, public and
state organizations, institutions and enterprises
participating in the field of criminal proceedings, as
well as participants in criminal proceedings and
criminal proceedings. activities of other entities
participating in the investigation are understood [ 3].
Based on the above, the procedural activities of state
bodies responsible for ensuring the rights and
freedoms of individuals and individuals in the criminal
process are analyzed on the example of the activities
of prosecutors , investigators and lawyers .
ensuring the rights of the individual in the criminal
proceedings . The institution of "supervision" is
important in the implementation of social relations in
the existing spheres of society in accordance with the
relevant legal documents. The existence of the control
institution, in turn, is a guarantee that every
relationship is carried out within the framework of the
law, in particular, the principle of "rule of law" is
ensured in society.
The prosecutor's office, which is one of the
institutional foundations of this field, in particular,
"prosecutor control", has a special place in the control
of the execution of legal documents.
Prosecutor's supervision is an independent, specific
type of state activity. Other than the prosecutor's
office,
no
state
office,
organization,
public
organization, or other law enforcement agencies, as
well as officials or individuals can perform this activity.
The prosecutor's supervision is carried out on behalf of
the state, that is, on behalf of the state of the Republic
of Uzbekistan, even if it is not stated in the documents
that it is on behalf of the state. The prosecutor
supervises the clear and uniform implementation of
laws on the territory of the Republic of Uzbekistan not
on behalf of a specific office or in the interest of this
office, but in the name of the state and in the interest
of the state and our society [4].
Control over the precise and uniform implementation
of laws in the territory of Uzbekistan is carried out by
the Prosecutor General of the Republic of Uzbekistan
and prosecutors subordinate to him, according to the
legislation.
At the same time, prosecutors exercise appropriate
control over the implementation of criminal procedural
legislation in criminal proceedings, as in other areas.
In this regard, the direction of control includes quick-
search activity, pre-investigation investigation, inquiry,
control over the implementation of laws by the bodies
that carry out the preliminary investigation, as well as
protesting the illegal documents of the courts in
criminal cases.
Volume 03 Issue 06-2023
26
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(ISSN
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VOLUME
03
ISSUE
06
Pages:
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(2021:
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5.
705
)
(2023:
6.
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)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
The legality of decisions made by crime-fighting bodies
is the subject of control over law enforcement by
crime-fighting bodies.
In this regard, the prosecutor exercises the relevant
powers provided for in Article 28 of the Law "On the
Prosecutor's Office" of the Republic of Uzbekistan.
In Article 382 of the Criminal Procedure Code of the
Republic of Uzbekistan, the powers of the prosecutor
to exercise control over the implementation of laws
during the investigation and preliminary investigation
are indicated.
The prosecutor has the authority to verify the validity
of the request for the application of a preventive
measure in the form of detention or house arrest
applied to the detained suspect or the person involved
in the case as an accused, and to send the decision on
the initiation of the request and the necessary
materials to the court.
According to the criminal procedure legislation, if the
prosecutor checks the reasonableness of the
investigator's presentation and agrees with it, he will
send to the court a request to refuse to initiate a
criminal case or to close a criminal case based on the
amnesty act, together with the materials of the
investigation conducted before the investigation or
the criminal case.
Also, the prosecutor and his deputy have the right to
file a protest against the court's verdict, which has not
entered into force , in the appeal procedure .
The appellate court shall verify the completeness of
the determination of the facts of the appeal (protest)
and the correct application of the norms of the criminal
law, whether the norms of the criminal procedural law
were observed during the proceedings, the legality,
reasonableness and fairness of the verdict, decision of
the court of first instance in the case and the appellate
court examines the evidence further examined.
At the same time, The chief prosecutor, his deputies,
the prosecutor of the Republic of Karakalpakstan, the
prosecutors of the regions and the city of Tashkent, as
well as the prosecutors equivalent to them, have the
right to protest the verdict and ruling of the court of
the first instance and the appellate court in the
cassation procedure .
Let's consider below the aspects related to ensuring
the rights and legal interests of the person based on
the norms of the legal documents on the supervision
of the prosecutor in the criminal proceedings .
It should be noted that the documents accepted as a
result of the process and results of the criminal
process, in particular, rapid search, pre-investigative
investigation,
inquiry,
preliminary
investigation
processes, and the process of consideration of the case
in court, are directly related to the rights and legal
interests of the person.
In the opinion of legal scholars Z.F. Inoghomjonova and
G.Z. Tolaganova, " the prosecutor is one of the most
active participants in the criminal process, and only he
participates in all stages of the criminal proceedings,
that is, from the initiation of the criminal case to the
execution of the judgment of the court issued against
the person. The prosecutor leads the trial of all criminal
cases and performs important tasks in moving cases
from one stage to the next. At the same time, its
procedural status will also look different at different
stages . [5].
According to T.Yu. Grunskaya, in the system of
ensuring procedural guarantees of the rights of the
participants in the criminal proceedings, the
Volume 03 Issue 06-2023
27
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
03
ISSUE
06
Pages:
24-37
SJIF
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(2021:
5.
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)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
prosecutor's control is aimed at ensuring, on the one
hand, the achievement of the interests of justice, and
on the other hand, the protection and protection of
rights and legal rights. The prosecutor's control over
the provision of procedural guarantees of the rights of
the participants in the criminal proceedings can be of
two types: active and passive. Separation of these
types of control is related to the initiative (activity) or
lack thereof (passivity) at the beginning of the
prosecutor's investigation, as well as the final decision
on the complaint or petition. In addition, the form of
active participation means the possibility of the
prosecutor to conduct such an investigation on his own
initiative, and passive - his participation in the
investigation by another div (that is, not by the
prosecutor). Which of the listed types of prosecutor's
control is used depends on its content and specific
features of its legal status, powers affecting security
and measures of state protection against protected
persons. [6].
Researcher S.R. Khisametdinova, one of the experts in
the field, said that "observance of human rights and
freedoms determines the content of the subject of the
prosecutor's supervision under consideration. It also
includes the scope of monitoring the implementation
of laws by bodies carrying out rapid-search activities,
and monitoring the implementation of laws by pre-trial
investigative bodies. Observance of human and civil
rights and freedoms is also in the focus of attention of
prosecutors during the implementation of the function
of criminal prosecution. [7].
As one of the institutional foundations of ensuring the
rights and legal interests of a person in a criminal
proceeding, the content of the prosecutor's
supervision - from the receipt of reports and reports
about a crime, to the investigation and investigation,
and the stages of studying the legality of the court's
decisions on criminal cases in order to directly ensure
the rights and legal interests of the person , organizes
the implementation of control measures by the
prosecutor on cases of clear and uniform execution of
legal documents at these stages.
Therefore, the prosecutor carries out control at the
above-mentioned stages of the criminal process and
applies one of the relevant documents of the
prosecutor's control, that is, a measure of influence, in
order to determine the rights and legal interests of a
person, as well as other cases of violation of the law.
These documents are the result of actions of the
prosecutor's control over the clear and uniform
implementation of laws in the field.
In particular, the prosecutor can cancel the decisions of
investigators and investigators, as well as pre-
investigation inspection bodies, which are contrary to
the rights and legal interests of a person, or are
otherwise illegal and unreasonable.
In addition, during the investigation of the criminal
case, he gives written instructions to the investigator
and investigators, which must be followed in order to
strictly follow the law and fully ensure the rights and
interests of the person.
The prosecutor shall disqualify the investigator or the
investigator from continuing the investigation or
preliminary investigation, provided that they have
violated the law during the investigation of the case.
In addition, the prosecutor requests documents,
materials and other information on the progress of the
preliminary
investigation,
investigation,
and
investigation related to the committed crimes.
The content of the powers of the prosecutor
mentioned above and directly implemented in the
Volume 03 Issue 06-2023
28
International Journal Of Law And Criminology
(ISSN
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VOLUME
03
ISSUE
06
Pages:
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SJIF
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(2021:
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(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
criminal proceedings, together with the rule of law, is
formed by the goal of ensuring the rights and legal
interests of the individual.
Procedural activities of investigative bodies in ensuring
the rights of individuals in criminal proceedings . The
activities of the participants in the criminal
proceedings, in particular their rights and obligations,
are the main elements of procedural guarantees.
Accordingly, one of the preliminary investigation
officials in charge of the criminal case is the
investigator, his rights and obligations, as well as the
procedural activities of the preliminary investigation
bodies, as one of the organizational and legal
foundations of the mechanism for ensuring the rights
of the individual, a comprehensive analysis based on
the current legal norms and the scientific and
theoretical views of the researchers. will be done.
Based on the above, based on the norms of the
legislation on the activity of the preliminary
investigation bodies in the criminal process, let's
consider below the aspects related to ensuring the
rights and legal interests of the person.
According to the current legislation, preliminary
investigation bodies carry out procedural activities in
the following areas of ensuring the rights of individuals
in criminal proceedings:
1. To prevent unjustified initiation of a criminal case
before the stage of initiation of a criminal case, that is,
as a result of a thorough, comprehensive, complete
and objective investigation of the applications and
reports about the crime, and by giving a legal
assessment of the behavior of each person based on
the identified circumstances.
2. The obligation of the investigator to respect the
honor and dignity of the persons participating in the
case, in which, within the framework of the criminal
case, the suspect, the accused, the victim, the witness,
and other persons participating in the case, by means
contrary to the law, that is, rape, intimidation,
restriction of rights and other violations of the law not
to try to get shows with special measures.
Strict adherence to one of the rules of the presumption
of innocence in the investigation process, that is, all
doubts about guilt should be resolved in favor of the
suspect, the accused, provided that the possibilities of
eliminating them have been exhausted .
4. Strict adherence to the existence of grounds
established by law for accusing a person.
5. Consistent study of the cases of whether or not
there are grounds for closing the criminal case without
resolving the issue of the person's guilt in committing
the crime.
6. Ensuring the rights and legal interests of the
individual by strictly following the established rules of
investigation (for example, the total duration of the
interrogation should not exceed eight hours in one
day).
Preventing the initiation of a criminal case without
grounds at the end of the investigation before the
investigation. It is one of the forms of conducting the
case before the court, i.e. it includes actions related to
the examination of applications, messages and other
information related to crime, making decisions based
on the result of their review, as well as measures to
strengthen and preserve traces of crime, objects and
documents that may be important for the case.
investigation actions are carried out before the
recipient's investigation.
Volume 03 Issue 06-2023
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Pages:
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6.
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
In this case, the investigator conducting the pre-
investigation
investigation
should
carefully,
comprehensively, fully and objectively investigate the
applications and reports about the crime, in particular,
initiate a criminal case only in cases where there are
reasons and sufficient grounds for the commission of a
crime.
In order No. 129 of the Prosecutor General of the
Republic of Uzbekistan dated February 22, 2016 "On
effective provision of the rule of law and the protection
of the rights and freedoms of the individual in the fight
against crime, investigation, preliminary investigation
and rapid search activities", a criminal application is
one of the main criteria for evaluating the activities of
the prosecutor in this field. , it is indicated that the
requirements of the criminal-procedural legislation are
fully complied with during the review of the report and
other information and the preliminary investigation,
violations of the law that cause criminal cases to be
returned for additional investigation are not allowed.
According to this order, the state of registration,
review and resolution of applications, reports and
other information related to crime should be
summarized every six months, the period of
examination before the investigation should not be
extended without reason, appropriate measures
should be taken against the employees who
unreasonably violated the period or allowed to censor
without extending it in the prescribed manner.
strengthen control over strict compliance with legal
requirements when sending crime reports or
documents collected on the basis of them territorially
or according to their relevance to the investigation, the
results of registering, reviewing and solving crime
reports every six months to regional, district (city)
prosecutor's offices and to them it is indicated to be
included in the discussion of the co-ordinating council
of law-enforcement bodies by the equalized
prosecutor's offices and to determine measures aimed
at preventing systemic violations of the law [ 8].
in the "Concept of Improving the Criminal and Criminal
Procedural Legislation of the Republic of Uzbekistan" [
9], approved by the decision of the President of the
Republic of Uzbekistan No. PQ-3723 of May 14, 2018, it
is necessary
to expand the scope of the institution of conciliation in
the investigation and consideration of cases at the
stages of the investigation and before the
investigation. development of completely new
priorities of the state criminal-legal policy on clarifying
the procedural status of the persons involved in the
investigation process, as well as those detained before
the initiation of a criminal case, was determined.
It can be understood from this document that the
application of the institution of conciliation at the pre-
investigation stage of the criminal process and the
clarification of the procedural status of the arrested
persons at this stage is one of the bases for ensuring
the rights and legal interests of individuals in the field.
In the course of the investigation, respect for the
honor and dignity of individuals and not to attempt to
obtain factual information by limiting their rights
guaranteed by law. As one of the main directions of the
mechanism of protection of personal rights, the
content of the procedural activities of the preliminary
investigation bodies is to ensure the constitutional and
procedural rights and freedoms of the participants
during the investigative actions.
In this case, the investigator must respect the honor
and dignity of the persons participating in the work,
not to take actions that humiliate the honor and dignity
of a person, lead to the spread of information related
to his personal life, endanger his health, and cause him
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SJIF
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(2023:
6.
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OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
physical and spiritual suffering without reason. is
implied.
In addition, investigative bodies carry out criminal
procedural activities by using the means of procedural
coercion, often against the will and desire of some
individuals, in order to reveal the committed crime and
expose the culprits. These procedural means of
coercion can be applied not only to suspected and
accused persons, but also to victims, witnesses and
others involved in criminal procedural activities. All
coercive measures should be carried out on the basis
of respect for the honor and dignity of the persons
involved in the case. Prohibition of actions that
degrade a person's honor and dignity, lead to the
disclosure of information related to his personal life,
endanger his health, and cause him physical or mental
suffering for no reason, constitutes the essence of the
principle of respect for the honor and dignity of a
person. If in the course of the work, information
related to the personal life of the persons participating
in the process, adoption, medical secrets, etc. is
revealed, the state authorities must take measures to
prevent the dissemination of this information [ 10].
The Decree of the President of the Republic of
Uzbekistan "On additional measures to strengthen the
guarantees of rights and freedoms of citizens in judicial
and investigative activities" prohibits torture,
psychological and physical harassment and other cruel,
inhuman or degrading treatment of participants in
criminal proceedings or their close relatives. it was
determined that the information obtained by using it is
not allowed to be used as evidence in criminal cases [
11].
The rules of "inadmissibility of evidence" should be
followed by investigative bodies in strict compliance
with the criminal procedural law in ensuring the rights
and freedoms of individuals.
According to the current legislation, the issue of the
inadmissibility of using factual information obtained
through illegal means as evidence during the pre-
investigation investigation is determined at the
initiative of the investigator. In this case, when solving
the issue of inadmissibility of the evidence, the
investigator must find out exactly what the committed
violation is in each case and make a reasoned decision
[ 12].
Strict adherence to the rules of the "presumption of
innocence" principle during the investigation. It should
be observed that all suspicions of guilt in the criminal
case should be resolved in favor of the suspect, the
accused, provided that the possibilities of eliminating
them have been exhausted by the preliminary
investigation bodies.
According to the Criminal Procedure Code, the doubts
that arise when the law is applied must be resolved in
favor of the suspect, the accused, the defendant.
Accordingly, the accused's inability to provide
evidence of his innocence cannot be the basis for
finding him guilty. Investigative bodies issue a decision
to charge a person as an accused only if there is
sufficient evidence [ 13].
Strict adherence to the existence of legal grounds for
charging a person. Based on the criminal and criminal-
procedural legislation, investigative bodies should pay
serious attention to the existence of clear signs of
crime in the actions of the accused person at the end
of the investigation.
In particular, according to Article 82 of the Code of
Criminal Procedure, the object of the crime to accuse a
Volume 03 Issue 06-2023
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03
ISSUE
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Pages:
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SJIF
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(2021:
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(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
person; the nature and amount of the damage caused
by the crime, the circumstances describing the identity
of the victim; the time, place, method of the
committed crime, as well as other circumstances
specified in the Criminal Code; causal connection
between the act and socially dangerous consequences;
that the crime was committed by this person; it must
be proven that the crime was committed with right or
wrong intention or as a result of negligence or self-
confidence, the reasons and goals of the crime [ 14].
Based on this norm, one of the rules for ensuring the
rights and freedoms of a person during the
investigation process is that "one of the cases that
must be proven in the criminal process is to prove that
the crime was committed by this person. Proving the
guilt or innocence of the accused helps to uncover the
truth. It is very important to prove the degree of guilt
and guilt of the accused, taking into account that any
suspicion is resolved in favor of the accused, that the
burden of proof is not placed on the accused, and that
the burden of proof is not on the accused .
However, today, as a result of non-compliance with the
above-mentioned
criminal
procedural
law
by
investigative bodies, acquittals in criminal cases
against persons unjustly accused during the
investigation are increasing.
In this regard , citing the statistical and analytical data
of recent years
[ 19], 859 persons were acquitted in 2019, 781 persons
in 2020, and 743 persons in 9 months of 2021.
A consistent study of cases of whether or not there are
grounds for closing the criminal case without deciding
the issue of the person's guilt in committing the crime.
Article 84 of the Criminal Procedural Code of the
Republic of Uzbekistan specifies the grounds for
closing a criminal case without resolving the issue of
guilt, and investigative bodies must close the criminal
case without resolving the issue of a person's guilt in
committing a crime within the framework of a criminal
case.
In this regard, the effective application of the
"reconciliation institution" during the investigation,
the rights and legal interests of the person at the stage
of the criminal case before the court will be
consistently ensured, and it will be prevented from
having the status of "conviction" in the future.
At the same time, during the investigation, if the
person has committed a crime of low social risk or
serious crime for the first time, and has submitted an
application to plead guilty, has sincerely repented and
actively helped to solve the crime, and the investigator
has paid attention to the fact that the damage caused
has been eliminated. termination of the criminal case is
considered to be one of the means of ensuring the
rights and interests of the individual.
Ensuring the rights and legal interests of a person by
strictly following the established rules for conducting
investigative actions. The content of evidence
collection within the framework of a criminal case is
organized by investigative actions carried out by
investigative bodies and defined in criminal procedural
legislation.
[ 16] that must be observed during these investigative
actions :
1) committing actions that are dangerous for the life
and health of individuals or demeaning their honor and
dignity;
2) obtain testimony, explanations, conclusions,
perform experimental actions, prepare and provide
Volume 03 Issue 06-2023
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VOLUME
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Pages:
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SJIF
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(2021:
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5.
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)
(2023:
6.
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)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
documents or items by coercion, intimidation,
deception and other illegal means;
3) conducting investigative activities at night, that is,
from 10:00 p.m. to 6:00 a.m. Except for the cases
where it is necessary to prevent the crime being
prepared or committed, to prevent the disappearance
of the crime trace or the escape of the suspect, and to
recreate the state of the investigated event during the
experiment.
4) inciting a person to commit illegal acts and accusing
him of a crime committed as a result of such
incitement;
5) if there are grounds for involving a person as a
suspect or accused person in a criminal case, except for
the cases where it is required to interrogate him as a
witness, to carry out an examination or inspection;
6) take any written or oral testimony from the person
until his procedural rights are explained to him;
7) summoning and interrogating the close relatives of
the arrested suspect or the accused as participants in
the proceedings, if there are no grounds;
8) summoning and (or) questioning of the participants
of the proceedings to the law enforcement bodies by
the employees of the inquiry and preliminary
investigation bodies within the framework of the
criminal case sent to the court for substantive
consideration, cases where there is a separate criminal
case related to them or a written order of the court
except
Also, when performing work related to investigative
actions, the investigator must strictly follow the
prohibition of the presence of persons other than
doctors participating in the case as specialists or
experts during the stripping of a person of the
opposite sex.
According to Article 88 of the Criminal Procedure Code,
the investigator must take measures not to disclose
information about the personal life of the suspect, the
accused, the victim, etc. during the investigation. For
this purpose, the scope of the persons participating in
the investigative actions that may reveal such
information is limited, and the participants are warned
about the responsibility for their disclosure.
In addition, in order not to limit the rights of the
persons participating in the criminal case, the
investigator should ensure that the total duration of
the interrogation does not exceed eight hours in one
day.
Also, the law stipulates that the rights and obligations
of the participants should be explained and recorded in
the report before the investigator begins the
investigation.
ensuring the rights of a person in criminal proceedings
. In recent years, effective efforts have been made to
increase the role of the legal profession, which is one
of the institutional foundations of the protection of the
rights and legal interests of the participants in the
criminal proceedings, in particular those who defend
their interests. At all stages of court proceedings,
measures aimed at organizing the proper functioning
of the principle of dispute between the parties were
consistently implemented, the necessary legal
framework was created for lawyers to perform their
professional activities [ 17].
It should be noted that the "defender", that is, the
procedural activities of the lawyer, as a person who is
one of the persons who defends his interests in the
criminal proceedings and has the authority to protect
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(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
the rights and legal interests of the suspects, the
accused, the defendants in accordance with the
procedure established by law and to provide them with
the necessary legal assistance the directions of
implementation of this activity are defined in the
criminal procedural legislation.
V. L. Kudryavtsev stated that the lawyer's procedural
position is an independent participant in the process
who has certain rights and obligations to protect the
rights and legal interests of the participants in the
criminal procedural law with all means and methods of
protection not prohibited by the criminal procedural
law [18].
A lawyer is a person who has the relevant education
and a license to practice law.
Advocacy activity means highly qualified legal
assistance provided by individuals who have received
the status of attorney in the manner established by law
in order to protect the rights, freedoms and interests
of individuals and legal entities [19].
In the criminal proceedings, the lawyer's procedural
activity can be defined as participation in the
investigation, preliminary investigation stage and in
the court as a defender, a representative of the victim,
a civil plaintiff, a civil defendant.
According to the current legislation, a lawyer is allowed
to participate in the case at any stage of the criminal
proceedings, and when a person is arrested, his right
to freedom of movement is practically restricted.
Based on this norm, it is appropriate to analyze the
"protection function" that constitutes the content of
the lawyer's procedural activity in almost all stages of
the criminal process.
Considering the rights of the defender in the criminal
proceedings, it is appropriate to note the following
directions regarding the procedural activities of the
lawyer:
- activities related to the protection of a person when a
person is detained, when his right to freedom of
movement is practically limited;
- to participate in the questioning of the suspect, to be
present when the person is being charged and to be
present when the accused is being questioned, as well
as to participate in other investigative activities
conducted with their participation and to ask questions
to suspects, accused, witnesses, experts, experts;
- to give written comments, petitions and refusals
regarding the conduct of the investigative action in
which he participated;
- collection and presentation of evidence;
- getting acquainted with the documents related to the
procedural actions conducted with the suspect or the
accused, and after the completion of the inquiry or
preliminary investigation, to get acquainted with all the
materials of the criminal case and to record the
necessary information from them, to take copies of the
materials and documents using technical means at
one's own expense or to change the information
indicated in them record in the form;
- participation as a party in court hearings and court
hearings;
- filing complaints against the actions and decisions of
the investigator, investigator, prosecutor and the
court;
Volume 03 Issue 06-2023
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International Journal Of Law And Criminology
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VOLUME
03
ISSUE
06
Pages:
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SJIF
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(2021:
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)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
- get acquainted with the minutes of the court session
and express their opinions about it;
- to find out about the complaints and protests
presented in the case and to raise objections against
them;
- participation in appeal, cassation instance court
sessions.
- if the suspect, the accused or the defendant is in
prison or under house arrest, the defense attorney can
meet with him freely without the permission of the
state bodies and officials responsible for conducting
the criminal case, without limiting the number and
duration of meetings[20].
M.H. Rustamboev and U. Tukhtashaeva stated that
"attorney uses a number of rights stipulated in the
Code of Criminal Procedure during participation in the
criminal proceedings as a defender or representative.
The participation of a lawyer in criminal proceedings is
a serious guarantee of protection of the rights,
freedoms and legal interests of citizens, and it helps to
determine the truth about the case and is an integral
part of the principles of dispute and equality of citizens
before the law and the court" [21].
It should be noted that in accordance with Article 49 of
the Criminal Procedure Code, at any stage of the
criminal proceedings, when a person is arrested, the
participation of a defense attorney, that is, a lawyer, is
allowed in the case from the moment when his right to
freedom of movement is practically limited. At this
point, it should be noted that in cases where a person
is detained on the grounds specified in Article 221 of the
Criminal Code, although the law stipulates that the
relevant report should be drawn up after the person is
brought to the internal affairs div or another law
enforcement div, his right to freedom of movement
is practically limited from the moment is considered a
suspect. From this moment on, the detained person
enjoys all the rights granted to the suspect, including
the right to get a lawyer, to call or send messages to
relatives or a lawyer, to refuse to testify, and to know
that the testimony he gave can be used as evidence
against him in a criminal case. . Because of this, in such
cases, he cannot be interrogated as a witness, without
being notified of the decision that he is involved as a
suspect in a criminal case, and without explaining his
rights and obligations, and investigative actions
against him cannot be carried out [22].
According to paragraph 12 of the decision of the
Plenum of the Supreme Court of the Republic of
Uzbekistan dated December 19, 2003 "On judicial
practice on the application of the laws on providing the
suspect and the accused with the right to defense", the
defender, in particular, the lawyer, according to the
law, by the suspect, the accused or his legal
representative, it is also offered by other persons
based on the request or consent of the suspect, the
accused. The suspect, the accused may offer several
defense attorneys in the case.
In the opinion of Z.F. Inog'omjonova and G.Z.
Tolaganova, "protecting the rights and legal interests
of the accused is the main duty of the defender. To
protect the legal interests of the accused, to achieve
the dismissal of the criminal case due to the
groundlessness of the accusation; to achieve a change
in the qualification (qualification) of the criminal case
in order to ease responsibility according to the
circumstances of the case; obtaining the cancellation
or modification of a precautionary measure with due
justification; various procedural actions consisting of
trying to determine mitigating circumstances and
others are understood. In other words, protecting the
legal interests of the accused, preventing the trial or
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VOLUME
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Pages:
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(2021:
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5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
prosecution of an innocent person, preventing unjustly
heavy punishment, includes taking into account all
mitigating circumstances" [23].
Procedural activity of a lawyer in working with
evidence is important in criminal proceedings. In
particular, the lawyer has the right to collect and
present evidence in the criminal case , which must be
added to the criminal case materials, as well as
mandatory evaluation during the pre-investigation
investigation, investigation, preliminary investigation
and criminal case trial. These evidences include:
interviewing persons with information relevant to the
case and obtaining written explanations with their
consent; can be collected by sending requests to state
bodies and other bodies, as well as enterprises,
institutions and organizations, and by receiving
references, descriptions, explanations and other
documents from them.
Also, a motion to declare the evidence inadmissible by
the lawyer can be submitted at any stage of the
proceedings before the court and at the court session.
Since the evaluation of the evidence in the law belongs
to the authority of the state bodies and officials
responsible for conducting the criminal case, the
lawyer, as one of the other participants in the criminal
proceedings, can only object to the decision
(judgment) of these bodies on the relevance,
admissibility and reliability of the evidence by filing a
complaint in accordance with the law. they have the
right to express.
In addition, the principle of "argument" is also
important in the implementation of the lawyer's
procedural activities. At the same time, in court
proceedings, the dispute takes place only if the
prosecutor and the lawyer are continuously present at
the court session.
According to the criminal procedural legislation, this
principle is considered one of the priority rules of the
criminal procedure, and the proceedings are carried
out on the basis of the mutual dispute of the parties at
the court session of the first instance court, as well as
when the cases are heard in the higher courts.
When the case is being heard in court, the tasks of
prosecution, defense and case resolution cannot be
performed separately and assigned to one div or one
official.
A lawyer participates in the court session as one of the
parties and uses equal rights to present evidence,
participate in their examination, make a request, and
express his opinion on any issue important for the
proper resolution of the case.
It is established by the relevant documents that the
lawyer's resumption of work does not require the
repetition of procedural actions carried out up to that
time. In particular, the employment of a lawyer during
the court session is not a reason for restarting the
court investigation. However, in this case, the court
should give him the opportunity to familiarize himself
with the case materials and prepare for the defense of
the rights and interests of the person under his
protection. The request of the lawyer to summon the
persons questioned by the court before entering the
proceedings shall be resolved in accordance with the
procedure established by Article 448 of the Criminal
Procedure Code.
Also, in cases provided for by Article 51 of the Code of
Criminal Procedure, the presence of a lawyer must be
provided at the session of the court of appeal,
Volume 03 Issue 06-2023
36
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
03
ISSUE
06
Pages:
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SJIF
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(2021:
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)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
cassation, and control instance in the higher court
instances.
In cases where the convict waives the defense counsel,
if it is accepted by the court in compliance with the
provisions stipulated in Article 52 of the Criminal Code,
it is allowed to hear the case in the court of appeal,
cassation, control instance without the participation of
the defense counsel.
Let's focus on the issue of language proficiency or lack
of proficiency in the lawyer's procedural activities
regarding the case pending in court. It is established
that the lawyer's lack of knowledge of the language of
the court case does not prevent him from participating
in the case, and in this case, he should be provided with
an interpreter in accordance with the second part of
Article 20 of the Criminal Procedure Code.
Based on the above, the concept of the lawyer's
procedural activity - the lawyer's functional tasks
defined in the law related to the protection of the
rights and legal interests of the person under his
protection (participation in the stages of the criminal
process, collecting and presenting evidence, asking
questions to the participants of the process, written
comments on the stages of the process) it is desirable
to understand the activities related to giving, filing and
rejecting petitions, filing complaints about the actions
of officials, etc.).
In conclusion, it should be noted that the effective
activity of the prosecutor, lawyer and investigator as
elements of the mechanism for ensuring the rights of
the individual, in particular, the implementation of
procedural activities in accordance with the law and
the adoption of legal decisions based on the result, in
turn, are important in ensuring the rights and legal
interests of the individual at all stages of the criminal
process.
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SJIF
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FACTOR
(2021:
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(2022:
5.
705
)
(2023:
6.
584
)
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Publisher:
Oscar Publishing Services
Servi
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