Volume 03 Issue 02-2023
39
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
39-45
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
The article presents certain requirements and rules for the criminal legal assessment of the committed act and
examines aspects of the legal influence of a lawyer on the implementation of the correct qualification of a crime by
an investigator, investigator, prosecutor, and court.
KEYWORDS
Lawyer, action committed, evidence, law, qualification, rules, crime, process, criminal legal assessment, corpus delicti.
INTRODUCTION
Today we are witnessing significant reforms in the
judicial and legal system of the Republic of Uzbekistan,
which is primarily aimed at ensuring the priority of
legality and justice.
Of course, in ensuring these priorities, the correct and
rigorous application of laws in law enforcement
practice is important.
One of the important forms of law enforcement
activity is the legal assessment of the committed
socially dangerous act, which is defined as the
qualification of a crime.
In the theory of criminal law, the qualification of crimes
is understood as the establishment and legal
consolidation of an exact correspondence between
Research Article
THE ROLE OF A LAWYER IN ENSURING THE CORRECT CRIMINAL LEGAL
ASSESSMENT OF THE ACT COMMITTED
Submission Date:
February 18, 2023,
Accepted Date:
February 23, 2023,
Published Date:
February 28, 2023
Crossref doi:
https://doi.org/10.37547/ijlc/Volume03Issue02-07
Rafik Shakurov
Associate Professor Center For Advanced Studies Lawyers Of The Ministry Of Justice 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 03 Issue 02-2023
40
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
39-45
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
the signs of the committed act and the signs of the
corpus delicti provided for by the criminal law norm [1].
Carrying out the qualification of the committed socially
dangerous act, the authorized bodies determine the
further fate of the materials collected under a specific
circumstance.
THE MAIN RESULTS AND FINDINGS
The qualification of the action committed also affects
the legal status of the person who became involved in
a particular circumstance. Naturally, the further status
of such a person depends on whether the qualification
is carried out correctly.
The essence of the qualification of crimes is to find out
whether the event of the crime took place, who is
guilty of committing it, as well as all other
circumstances related to it.
The Criminal Procedure Code of the Republic of
Uzbekistan (hereinafter referred to as the CPC), the
clarification of these facts and circumstances, connects
with the concept of "establishing the truth". At the
same time, the inquirer, investigator, prosecutor, and
judge are the persons whose duty it is to establish the
truth in the case. Therefore, it can be stated that the
establishment of the truth and the qualification of the
crime are close in importance.
The qualification of a crime by the named authorized
persons is carried out within the competence defined
by the relevant articles of the criminal procedure
legislation, and the decisions they make on a specific
criminal case are of a mandatory legal nature and are
implemented in the form of legal documents
(indictment, sentence, etc.).
Because of this, the legal literature classifies the
qualification of a crime into official (legal) and
unofficial (doctrinal). At the same time, the official
(legal) qualification of crimes is understood as
activities related to the legal assessment of an act
committed by employees of a state div with special
powers (inquiry, investigation, prosecutor's office, and
court), based on the requirements of criminal law and
other legal norms. The unofficial (doctrinal) type of
qualification of crimes is defined as a legal assessment
of a socially dangerous act given in statements and
complaints by lawyers and other persons, in the mass
media, as well as in scientific papers and scientific
publications [2].
Without questioning the above classification of the
crime, at the same time, we believe that the broad
rights granted allow lawyers, based on the results of
their informal qualifications, to petition authorized
persons for the reclassification of the act.
At the same time, at the stage of inquiry and
preliminary investigation, such a petition may be
conditioned in connection with the discovery of new
circumstances in the case, and the unreliability of the
evidence available in the case material. Filing a petition
in court may be caused by the presence of investigative
errors, inaccuracies, or distorted factual data.
The analysis of law enforcement practice shows that
there are still some facts of incorrect qualification of
the committed act, which naturally violate the rights
and interests of citizens.
It is known that to establish the truth in a case, only the
information that has been discovered and verified
following the procedure provided by the CPC (Article
22 of the CPC) can be used. Consequently, in the
process of inquiry, preliminary investigation, and
Volume 03 Issue 02-2023
41
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
39-45
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
judicial proceedings, the lawyer must establish that the
named officials have inaction committed and complied
with the requirements of the law. Accordingly, if, as a
result of familiarization with the materials of the
criminal case, the lawyer discovers that there is an
incorrect qualification of the act (for example,
"qualification with a margin"), he has the right to file
petitions for the reclassification of the act or the
termination of the criminal case due to the absence of
an event or corpus delicti [3].
Without questioning the above classification of the
crime, at the same time, we believe that the broad
rights granted allow lawyers, based on the results of
their informal qualifications, to petition authorized
persons for the reclassification of the act.
At the same time, at the stage of inquiry and
preliminary investigation, such a petition may be
conditioned in connection with the discovery of new
circumstances in the case, and the unreliability of the
evidence available in the case material. Filing a petition
in court may be caused by the presence of investigative
errors, inaccuracies, or distorted factual data.
The analysis of law enforcement practice shows that
there are still some facts of incorrect qualification of
the committed act, which naturally violate the rights
and interests of citizens.
It is known that to establish the truth in a case, only the
information that has been discovered and verified by
the procedure provided for by the CPC (Article 22 of the
CPC) can be used. Consequently, in the process of
inquiry, preliminary investigation, and judicial
proceedings, the lawyer has to establish that the
named officials have inaction committed and complied
with the requirements of the law. Accordingly, if, as a
result of familiarization with the materials of the
criminal case, the lawyer discovers that there is an
incorrect qualification of the act (for example,
"qualification with a margin"), he has the right to file
petitions for the reclassification of the act or the
termination of the criminal case due to the absence of
an event or corpus delicti [3].
The legislation does not establish a strict form of
application for the reclassification of a crime. We
believe that in such a petition, the reasons for the
change in qualifications should be specifically stated,
and documents and information confirming the
unfaithfulness of the prosecution's position should be
attached.
The list of information subject to proof and relevant to
the qualification of the act committed is given in article
82 of the CPC, which provides grounds for accusation
and conviction. Most of the information specified in
this article relates to objective and subjective signs of a
crime (corpus delicti) provided for by the relevant
articles of the Special Part of the Criminal Code of the
Republic of Uzbekistan (hereinafter referred to as the
Criminal Code).
The establishment of the presence of elements of a
crime in a committed socially dangerous act is a
prerequisite for the correct qualification of the
committed act and, accordingly, the basis of the
prosecution and the reasoned referral of the case to
the court for a verdict of guilty.
Naturally, the qualification of the crime is inherent in
the degree of truth, which is due to the material based
on which the conclusion is made
–
the legal assessment
of the action committed. Therefore, the correct
qualification of a crime can be achieved only based on
the necessary and sufficient evidence base subjected
Volume 03 Issue 02-2023
42
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
39-45
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
to thorough, complete, comprehensive, and objective
verification (article 94 of the CPC).
Here the task of the lawyer is to study the materials of
the criminal case, which were the basis for the
qualification of the committed act, by authorized
officials. In particular, the sufficiency of evidence can
be determined by a lawyer by examining procedural
documents in a criminal case (for example, statements
of the victim, explanations of other participants,
protocols of inspection of the scene of the incident,
interrogation, confrontation, results of examinations,
etc.). So, we believe that the testimony of witnesses is
not sufficient for the qualification of an act under the
article of the Criminal Code, which provides for a crime
with a material composition, in the absence of material
evidence.
It is known that the evidence base is subject to
assessment in terms of relevance, admissibility, and
reliability (Article 95 of the CPC).
Here the task of the lawyer is to study the materials of
the criminal case, which were the basis for the
qualification of the committed act, by authorized
officials. In particular, the sufficiency of evidence can
be determined by a lawyer by examining procedural
documents in a criminal case (for example, statements
of the victim, explanations of other participants,
protocols of inspection of the scene of the incident,
interrogation, confrontation, results of examinations,
etc.). So, we believe that the testimony of witnesses is
not sufficient for the qualification of an act under the
article of the Criminal Code, which provides for a crime
with a material composition, in the absence of material
evidence.
It is known that the evidence base is subject to
assessment in terms of relevance, admissibility, and
reliability (Article 95 of the CPC).
In particular, the necessary quality of any evidence is its
relevance to a specific criminal case. Evidence is
recognized as relevant to a criminal case if it is
information about facts or objects that confirm, refute
or call into question conclusions about the existence of
circumstances relevant to the case (part 2 of Article 95
of the CPC). Consequently, the advocate has the right
to file a complaint against the actions of the
investigator, who used as evidence information
unrelated to the case.
Evidence is considered admissible if it is collected by
the established procedure and meets the conditions
set out in the Code of Criminal Procedure.
Consequently, evidence collected in violation of the
law can be interpreted as inadmissible [4]. Thus, the
testimony of a witness, which is based on assumptions
and guesses, the results of the interrogation of a minor
suspect or accused without the participation of a
defender, or a legal representative, are not
permissible. In such cases, referring to the relevant
article of the CPC, as well as to the explanation of the
Plenum of the Supreme Court of the Republic of
Uzbekistan that "any evidence obtained in violation of
the law has no legal force, cannot be cited in the
verdict, and even more so cannot be used as its basis,"
the lawyer within the framework of his rights must file
a complaint [5].
Part 4 of Article 91 of the CPC ("Auxiliary methods of
securing evidence. Annexes to the protocol"), defines
the obligation to record a video recording of an
inspection of the scene of an incident for particularly
serious crimes, a search, verification of testimony at
the scene of the event, an investigative experiment,
Volume 03 Issue 02-2023
43
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
03
I
SSUE
02
Pages:
39-45
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
detention of a person, refusal of a defender, as well as
a personal search and seizure carried out during the
detention of a person. Therefore, based on the letter
of the law, carrying out these procedural actions
without recording a video is illegal.
In this aspect, we believe that there are all
prerequisites for inclusion in Article 951 of the Code of
Criminal Procedure ("Inadmissibility of evidence"), the
inadmissibility of using as evidence the said procedural
actions that were carried out without video recording.
Reliable evidence is recognized that indisputably
establishes the truth about every one of the
circumstances to be proved. When establishing the
reliability of evidence, the lawyer should find out that
the facts and circumstances attached to the case by
the inquirer, investigator, and court have evidentiary
value and do not distort a specific event. Thus,
contradictory testimony of witnesses in a criminal case
cannot be recognized as reliable. In such cases, the
lawyer has the right to petition the court for the re-
qualification of the imputed corpus delicti, which was
carried out by the investigator, investigator, and
prosecutor.
The reforms carried out in our country in the judicial
and legal sphere have made adjustments to the
previously established opinion in criminal law science
that the legal assessment of a socially dangerous act
committed by a lawyer does not entail legal
consequences. Thus, by article 87 of the CPC
("Collection of evidence"), the evidence collected and
presented by a lawyer in a specific criminal case is
subject to inclusion in the materials of the criminal
case, as well as a mandatory assessment during the
pre-investigation
check,
inquiry,
preliminary
investigation, and consideration of the criminal court
case [6].
Consequently, it can be stated that, if there are
sufficient grounds, the evidence presented by the
lawyer may affect the qualification of the action
committed, which may be expressed in the form of a
decision by the inquirer, investigator, or court to
reclassify the social dangerous act committed or to
terminate the criminal case, due to the absence of an
event or corpus delicti.
Evidence in the case can be collected by a lawyer by
surveying persons who possess relevant information
and receiving written explanations with their consent,
sending a request, and receiving certificates,
characteristics, explanations, and other documents
from state and other bodies, as well as enterprises,
institutions, and organizations.
Of course, for the correct qualification of a committed
socially dangerous act, knowledge of the general rules
for the qualification of a crime is necessary, which are
based on the rules of logic, psychology, philosophy,
and guiding explanations of the decisions of the
Plenum of the Supreme Court.
The need for a lawyer to develop knowledge in this
area is demanded by the existing facts of incorrect
qualifications, which are allowed by individual
employees of investigative bodies.
As a rule, such errors are associated with the
determination of the signs of the corpus delicti (the
object of encroachment, the objective side of the
crime, the subject of the crime, and the subjective side
of the crime). So, it seems interesting the situation
when knowledge of the rules of qualification of a
specific crime, in particular on the object of
encroachment, allowed the lawyer to provide effective
assistance to the client.
Volume 03 Issue 02-2023
44
International Journal Of Law And Criminology
(ISSN
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VOLUME
03
I
SSUE
02
Pages:
39-45
SJIF
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FACTOR
(2021:
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705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
According to the statement of citizen N., a criminal
case was initiated by an investigator of the internal
affairs bodies on the fact of theft of money (part 1 of
Article 169 of the Criminal Code), concerning her
husband, citizen S., the lawyer found that citizen N. and
citizen S. are legally married, and the money
recognized as "stolen" by Article 23 The Family Code of
the Republic of Uzbekistan is the common joint
property of the spouses. In this case, a complaint
reasonably filed by a lawyer with higher authorities led
to the termination of the criminal case for lack of
corpus delicti (paragraph "2" of Article 83 of the CPC)
and the release of citizen S. from custody.
As we can see, the incorrect definition of public
relations representing the object of encroachment led
the investigator to illegally bring the person to criminal
responsibility. Similar qualification errors are also
observed when actions that represent civil or
economic relations are incorrectly qualified as crimes.
Such cases include, for example, unjustifiably initiated
criminal cases on the fact of human trafficking (Article
135 of the Criminal Code), fraud (Article 168 of the
Criminal Code), and some other crimes.
The lawyer should take into account that the
qualification of the crime, in connection with the
clarification of the actual circumstances of the case,
may change at any stage of the criminal process (at the
preliminary investigation, during the trial, when
considering the case in the appellate or cassation
instances). Consequently, the lawyer's participation in
the trial does not exclude his right to provide materials
proving the infidelity of the legal assessment of the
action committed, which was given during the
preliminary investigation. Therefore, one of the main
parts of the lawyer's speech at the trial is precisely the
shortcomings made by the investigating authorities in
the qualification of the action committed.
In this aspect, the proposal of the President of the
Republic of Uzbekistan is significant, in his Message to
the Oliy Majlis and the people of Uzbekistan indicated
that "Now the courts will accept a criminal case not
only with an indictment but also with the opinion of the
defense" [7].
In the first part of Article 25 of the CPC of the Republic
of Uzbekistan, it is noted that "In the court session of
the court of first instance, as well as when considering
cases by higher courts, the proceedings are carried out
based on the adversarial nature of the parties."
In the theory of law, adversarial means such a
construction of judicial proceedings in which the
prosecution and the defense (parties) are endowed
with equal rights to defend their claims of the opposing
party, and the court also has the right to direct the
process, actively investigate the circumstances of the
case and resolve the dispute itself [8].
Article 25 of the CPC also ensures the principle of
equality in legal proceedings, which means that the
court does not act on the side of the prosecution or
defense and does not express any of their interests,
but at the same time, while maintaining objectivity and
impartiality, creates the necessary conditions for the
parties to fulfill their procedural duties and exercise the
rights granted to them.
The existence of such a legally fixed principle provides
broad powers to the lawyer to ensure the rights and
legitimate interests of the client, including achieving
the correct qualification of the committed act.
Therefore, it is important to create effective
mechanisms to ensure in practice the principles of
competition and equality in court proceedings, which
is defined as one of the directions of the short-term
strategy of raising the judicial system to a qualitatively
Volume 03 Issue 02-2023
45
International Journal Of Law And Criminology
(ISSN
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VOLUME
03
I
SSUE
02
Pages:
39-45
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
new level for 2023-2026, approved by Decree of the
President of the Republic of Uzbekistan on January 16,
2023, No. UP-11 "On additional measures to further
expand access to justice and improving the efficiency
of the courts" [9].
In addition, this Strategy defines “The expansion of the
powers of a lawyer in procedural legislation, including
th
e powers to collect and present evidence.”
CONCLUSION
Thus, it can be stated that the broad powers granted
by the national legislation of the Republic of
Uzbekistan allow lawyers, within the framework of the
law, to apply for a change in the qualification of what
they have done at all stages of the criminal process,
and, accordingly, to protect the rights and legitimate
interests of persons who have applied to them for legal
assistance.
REFERENCES
1.
См.: Гаухман Л.Д. Квалификация преступлений:
закон, теория, практика. –
М.: АО «Центр
ЮрИнфоР»,
2001.
–
316
с.
/https://library.nlu.edu.ua/POLN_TEXT/KNIGI-
2013/Gauxman_2001.pdf
2.
Жиноятларни квалификация
қ
илиш
:
ИИВ
олий
таълим
муассасалари
учун
дарслик
/
Р
.
Кабулов
,
А
.
А
.
Отажонов
,
И
.
А
.
Соттиев
ва
бош
қ
.
–
Т
.:
Ўзбекистон Республикаси ИИВ Академияси,
2021.
–
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3.
См. об этом: Суханова Л.Г. Возможности
влияния адвоката
-
защитника на изменение
«квалификации с запасом» сформулированной
по
уголовному
делу
органами
расследования//Известия АлтГу. Юридические
науки.
2018.
№6
(104)
/https://cyberleninka.ru/article/n/vozmozhnosti-
vliyaniya-advokata-zaschitnika-na-izmenenie-
kvalifikatsii-s-zapasom-sformulirovannoy-po-
ugolovnomu-delu-organami/viewer.
4.
См.:
Статья
951
(«Недопустимость
доказательств»)
Уголовно
-
процессуального
кодекса
Республики
Узбекистан/
https://lex.uz/docs/111463.
5.
Закон Республики Узбекистан от 27 декабря 1996
года за № 349
-
I (в редакции Закона Республики
Узбекистан от 4 августа 2022 года №ЗРУ
-
786) «Об
адвокатуре»/ https://lex.uz/docs/5837.
6.
См.: Постановление Пленума Верховного суда
Республики Узбекистан от 23 мая 2014 года № 07
«О
судебном
приговоре»/
https://lex.uz/ru/docs/2413564
7.
Послание Президента Республики Узбекистан
Шавката Мирзиёева Олий Мажлису и народу
Узбекистана
/https://president.uz/ru/lists/view/5774
8.
См.
подробнее:
Шестакова
Т.П.
Состязательность и равноправие сторон как
принцип
уголовного
судопроизводства
/
Т.П.Шестакова. –
Текст: непосредственный //
Молодой ученый. –
2018.
–
№ 8 (194). –
С.99
-101.
–
URL: https://moluch.ru/archive/194/48493/
9.
Указ Президента Республики Узбекистан 16
января 2023 года № УП
-
11 «О дополнительных
мерах по дальнейшему расширению доступа к
правосудию и повышению эффективности
деятельности
судов»/https://lex.uz/ru/docs/6358985
