Volume 02 Issue 08-2022
19
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
08
Pages:
19-24
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article highlights the features of the stage of a preliminary hearing of a criminal case, the powers of the
prosecutor, as well as the existing problems concerning this stage making a comparative legal analysis, and proposals
are developed for the improvement in this regard.
KEYWORDS
Соurt, judge, prosecutor, powers, recall of case, court of first instance, court trial, preliminary hearing.
INTRODUCTION
The preliminary hearing stage of a criminal case was
introduced in the Criminal Procedure Code of the
Republic of Uzbekistan (hereinafter referred to as the
CPC) by the Law of the Republic of Uzbekistan “On
Amendments and Additions to the Criminal and
Criminal Procedure Codes of the Republic of
Uzbekistan” dated February 18, 2021 No. 675. An
arraignment is an example of English court procedure
[1]. Historically, this element of the judicial state can
also be found in the CPC of the USSR (1923-1959). This
stage is a court hearing, in which in some periods the
Research Article
PRELIMINARY HEARING OF CRIMINAL CASES: FEATURES, ISSUES AND
NEED FOR IMPROVEMENT
Submission Date:
August 15, 2022,
Accepted Date:
August 25, 2022,
Published Date:
August 30, 2022
Crossref doi:
https://doi.org/10.37547/ijlc/Volume02Issue08-05
D.S. Dovudova
Associate Professor, PhD, The Academy of the General Prosecutor’s Office, 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 02 Issue 08-2022
20
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
08
Pages:
19-24
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
participation of the prosecutor or investigator was
optional, while in some periods this was mandatory.
Thus, it can be said that the preliminary hearing is not a
new procedure for criminal cases; rather, the previous
(old) CPCs laid the groundwork for it.
The court has the authority to send the case to another
court, terminate it, stop it, and send it to the
prosecutor, among other powers of the court of first
instance at the hearing stage, according to the criminal
procedure codes of the Russian Federation [2],
Kyrgyzstan [3], the Republic of Belarus [4] and a
number of other nations (the United Kingdom, the
United States, France, Spain, Italy, Germany). This is
done with the participation of the parties to the
process.
THE MAIN FINDINGS AND RESULTS
The procedural code states that proceedings at the
preliminary hearing are only for courts of first instance
and are regarded as a stage of trial preparation.
In our opinion, the purpose of this stage are to examine
the criminal case, get ready for the trial, evaluate the
caliber of the evidence gathered during the preliminary
investigation and inquiry, and determine the future
course of the criminal case.
There are specific procedural requirements for the
preliminary hearing, including the following:
Firstly, the presence and brief appointment of the
matter for consideration, its beginning, the length of
the consideration, and the filing of a complaint or
protest are the first procedural terms;
Secondly, the presence of procedural documents, such
as the petition, court order, court proceedings
minutes, complaint, and protest;
Thirdly, it has procedural grounds, i.e. grounds such as
stopping, terminating, sending the case to the
prosecutor, issuing inadmissible evidence, and joining
or separating the case;
Fourthly, procedural order, which is the conduct of
procedures in accordance with particular special
regulations in addition to the overall framework of
proceedings;
Fifthly, the attendance of those who have the right to
participate in the proceedings (the victim, the civil
plaintiff,
the
civil
defendant,
and
their
representatives), as well as those whose participation
is required (prosecutor, accused and defender).
As seen above, we believe that each phase of the trial
has distinct characteristics and objectives, and the
preliminary hearing phase is no exception.
As was already mentioned, the prosecutor's
involvement is now required, thus it is fair to categorize
his authority in this manner. In particular, the
prosecutor has the power to:
File a motion to hold a preliminary hearing;
Participate in the hearing;
Voice an opinion or oppose to the matter being
discussed at the preliminary hearing;
File a protest against the decision reached
regarding the case's outcome.
However, we can also see from experience that the
preliminary hearing stage isn't employed very often
these days. Statistics alone show that practically all of
the work was completed in 2021 as evidence for this. It
Volume 02 Issue 08-2022
21
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
08
Pages:
19-24
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
is therefore not an overstatement to suggest that it
has gaps and issues.
First of all, for each new criminal case, the court must
determine whether there are sufficient grounds to
convene a preliminary hearing in accordance with
Article 395 of the Criminal Procedure Code. The
grounds for holding a preliminary hearing are provided
for in Article 405-3 of the Criminal Procedure Code and
are considered strict.
The court makes a decision regarding holding a
preliminary hearing on all the grounds specified in
Article 405-3 of the Criminal Procedure Code based on
the petition of the parties or on its own initiative (apart
from the issuance of inadmissible evidence). According
to Article 395 of the Criminal Procedure Code, the court
has a timeframe for making a judgment regarding
whether to hold a preliminary hearing on its own
initiative if there are sufficient reasons to do so.
However, the CPC lacks a clear policy about when and
how long the parties must wait before submitting
petitions to the court after becoming familiar with the
criminal case files.
In particular, under part 3 of Article 229 of the Criminal
Procedure Code of the Russian Federation, the parties
may request a preliminary hearing within three days of
the day on which they receive a copy of the indictment,
or after familiarizing themselves with the criminal case
files and sending them to the court [5].
Our opinion is that the date for the parties to make a
request for a preliminary hearing should be expressly
stated in Article 405-3 of the Criminal Procedure Code.
It also places obligations on the parties and precludes
varying interpretations from being used in the future
by law enforcement.
Secondly, pursuant to paragraph 5 of the second part
of Article 405-3 of the Criminal Code, evidence that is
inadmissible in the case may be excluded at the request
of one of the parties. This rule makes clear that only the
parties have the authority to ask for the exclusion of
illegal evidence from a criminal trial; the judge is not
permitted to do so.
However, it is not an exaggeration to claim that this
standard of the criminal procedural law is incorrect
given that the court plays a major role in the
substantive resolution of the criminal case.
For instance, it appears from the criminal case's
documentation that the search and investigation
actions were conducted in violation of the
requirements of the Criminal Procedure Code. The
parties, however, did not receive a motion to exclude
this inadmissible material from the record\case.
According to the CPC, the court has no right to take
such an initiative. In this case, although there is a basis
for holding a preliminary hearing, the petition of the
subject requesting to hold it is not available. We believe
that this topic merits discussion.
According to Article 95 of the Criminal Procedure Code,
the inquiry officer, investigator, prosecutor, and court
must evaluate the evidence in accordance with their
internal convictions, while also adhering to the law and
having a legal consciousness, and after carefully,
completely,
comprehensively,
and
impartially
examining all the relevant facts of the case.Each piece
of evidence must be evaluated for relevance,
admissibility, and credibility.
It is appropriate, in our opinion, to grant the court the
authority to hold a preliminary hearing on its own
initiative in order to omit unreliable evidence. Because
the judge evaluates whether the evidence was
Volume 02 Issue 08-2022
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International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
02
I
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08
Pages:
19-24
SJIF
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FACTOR
(2021:
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(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
gathered in accordance with the requirements of the
CPC as a matter of proof during the preliminary
hearing.
Furthermore, a copy of the motion to exclude
inadmissible evidence based on criminal procedural
legislation is sent to the prosecutor who approved the
indictment (by inquiry officer) or the indictment (by
investigator), as well as to the victim on the day the
motion is presented to the court (Part 3 of Article 405-
11 of the Criminal Procedure Code).
The legislation is vague about how long a preliminary
hearing should last once the opposite party receives a
copy of the petition, though. However, the party that
received a copy of the petition must take some time to
familiarize themselves with the case materials and
make ready for the petition's justifications. At the
same time, due to the fact that the procedural period
of the preliminary hearing is short, a specific period
should be noted in this regard.
Consequently, it is required to fill the eighth paragraph
of Article 405-11 the Criminal Procedure Code in the
following regulation to allow a preliminary hearing to
be held three days after the day when a copy of the
application to exclude inadmissible evidence is served
to the other parties.
Thirdly, the court's authority to dismiss the criminal
case in the presence of the circumstances outlined in
the first and fifth parts of Articles 83 and 84 of the
Criminal Procedure Code is one of the reasons for
holding a preliminary hearing in a criminal case.
The criteria for rehabilitation are outlined in Article 83
of the Criminal Procedure Code. If no criminal incident
has occurred in the case in which a case has been
opened, investigative measures have been taken, or a
trial has been held, if his act does not contain a criminal
element, if he is not involved in the crime committed,
and if he should be given the opportunity to be
rehabilitated, the suspect, the accused, and the
defendant shall be deemed innocent.
A.S. Barabash, L.M. Volodina stated that the
termination of the criminal case is a procedural act that
terminates all criminal-procedural relations [6].
The preliminary hearing is a step before the criminal
case is discussed in court, as was already established.
However, in order to conclude the criminal case in
accordance with Article 83 of the Criminal Procedure
Code, it is first essential to debate the charge's content
and assess its legitimacy. At the initial stage of the
hearing, it is not allowed to discuss the content of the
criminal case.
In particular, in accordance with Article 239 of the
Criminal Procedure Code of the Russian Federation, in
cases where the prosecutor waives the charge in
accordance with the procedure established in
paragraphs 3-6 of the first part of Article 24 and
paragraphs 3-6 of the first part of Article 27 of this
Code, as well as in the seventh part of Article 246 of this
Code, the court decides to dismiss the case [7].
According to the criminal procedural law of the Russian
Federation, the court is not permitted to dismiss the
criminal case on the basis of rehabilitation during the
preliminary hearing stage; such a dismissal is only
permitted if the prosecutor withdraws the charges.
In our opinion, it is required to order the termination of
the criminal case on the basis of rehabilitation because
the preliminary hearing stage is the phase of trial
preparation.
Volume 02 Issue 08-2022
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International Journal Of Law And Criminology
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VOLUME
02
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08
Pages:
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SJIF
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(2021:
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(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
Fourth, the judge makes the following decisions in two
distinct ways during the preliminary hearing phase of a
criminal case:
On holding a preliminary hearing
According to the result of the preliminary hearing.
According to Article 395 of the Criminal Procedure
Code, the court by making a decision to send the
criminal case to the court for consideration of the issue
of the indictment (by inquiry officer) or the indictment
(by investigator) or the application of mandatory
medical measures, issues a ruling on transfer of the
case according to the relevance of the trial, on the
appointment of the case for hearing in court, on the
holding of the preliminary hearing.
According to Article 405-14 of the Criminal Procedure
Code, the judge issues one of the following rulings
based on the results of the preliminary hearing:
1)
On suspending proceedings in a criminal case;
2)
On termination of criminal proceedings;
3)
On sending the criminal case to the prosecutor
who approved the the indictment (by inquiry
officer) or the indictment (by investigator) or the
decision to apply mandatory medical measures;
4)
On the consolidation or separation of criminal
cases in the cases provided for in this Code;
5)
On finding evidence inadmissible and on granting
or refusing to grant a motion to exclude.
According to the rule set forth in this procedural
regulation, the judge may only render a judgment
based on the outcome of the preliminary hearing on
one of the five grounds specified in Article 405-14 of the
Criminal Procedure Code. However, if the criminal case
is combined or separated and the evidence is judged to
be inadmissible and released, there is no process on
the basis of which the court will continue with the trial
after the preliminary hearing stage. Considering that a
procedural ruling determines whether a court will
begin or end a case..
In particular, Article 236 of the Criminal Procedure
Code of the Russian federation defines the system in
this regard in a manner that is both explicit and
understandable. It states that the judge has the
authority to decide whether to schedule the matter for
trial based on the outcome of the preliminary hearing.
The facts and other matters that should be reflected in
the decision have been thoroughly expressed. At the
same time, the preliminary hearing's outcome should
be formalized in the form of a decision.
In our opinion, the problem of choosing whether to
schedule the case for court hearing as a consequence
of the preliminary hearing must be addressed in the
procedural legislation. This will help the preliminary
hearing process function better and solve any
applicable issues.
CONCLUSION
In conclusion, it should be highlighted that many of the
gaps in the article make it challenging to apply the
preliminary hearing stage in actual practice today. The
article has only touched on a few of the issues that
arise at this level of a criminal case. When introducing
any procedural regulation, the implementation and
management mechanisms must be flawless. This
makes it simpler to uphold the law and stay clear of
issues and loopholes.
REFERENCES
1.
Criminal procedure: textbook / A.V. Smirnov,
K.B. Kalinovsky; under general ed. A.V.
Smirnova. -7th ed., revised. -M.: Norma: INFRA-
M, 2019. - p 544.
Volume 02 Issue 08-2022
24
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
08
Pages:
19-24
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
2.
"Criminal Procedure Code of the Russian
Federation" dated December 18, 2001 N 174-FZ
(as amended on August 2, 2019) (as amended
and supplemented, effective from September
1,
2019)
http://www.consultant.ru/document/cons_do
c_LAW_34481/
3.
“Criminal Procedure Code of the Kyrgyz
Republic” dated February 2, 2017 No. 20
http://base.spinform.ru/
4.
“Criminal Procedure Code of the Republic of
Belarus”
07/16/1999
No.
295-Z
http://etalonline.by/document/
5.
http://www.consultant.ru/document/cons_do
c_LAW_34481/30f31bcfdee07b4f57973752289
cd805165a76b6/
6.
A.S. Barabash, L.M. Volodina. Termination of
criminal cases on non-rehabilitating grounds at
the stage of preliminary investigation. Tomsk,
1986. p.47.
7.
http://www.consultant.ru/document/cons_do
c_LAW_34481/36f2e6da2a91b60b1dc4cc13abd
5d3c2c389e9ed/
