Volume 04 Issue 08-2024
32
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
08
P
AGES
:
32-39
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
The article considers the positive and negative sides of the institution of plea agreement, as well as gaps in the
legislation related to this institute. Proposals have also been developed that will lead to more efficient functioning of
the incentive rules in criminal cases.
KEYWORDS
Ensuring the right to a defence, plea agreement, leading criminal cases, defender, institution of reconciliation.
INTRODUCTION
On May 14, 2018, the decision PD-3723 of the President
of the Republic of Uzbekistan "On measures to
fundamentally improve the system of criminal and
criminal procedural legislation" was adopted. It was
noted that the non-application and ineffectiveness of
the incentive norms in the criminal process are an
obstacle to the reliable protection of human rights and
freedoms. . The plenum of the Supreme Court of the
Republic of Uzbekistan described the right to
protection in its Decision No. 17 of December 19, 2003
"on the application of laws relating to the protection
of a suspect and a defendant". According to him, the
right of protection of the suspect, the accused is the
sum of the procedural possibilities (means and
methods) that are given to him by law in order to deny
the suspect, the charge laid, or soften the liability and
punishment
.
Маълумки,
мазкур
процессуал
имкониятларга айбга и
қ
рорлик
тў
ғ
рисида
келишув
институти
ҳ
ам
киради
.
A plea agreement is an agreement concluded with the
prosecutor who supervises the conduct of the criminal
case based on the petition of the suspect, who agreed
to the charge, actively assisted in the discovery of the
crime, and eliminated the harm caused.
Research Article
ENSURING THE RIGHT OF THE SUSPECT AND ACCUSED TO A DEFENCE IN
THE USE OF THE INSTITUTIONS BY A PLEA AGREEMENT
Submission Date:
August 21, 2024,
Accepted Date:
August 26, 2024,
Published Date:
August 31, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue08-06
Abdukakhkhorov Sarvarbek Abdusamat ugli
Senior Lecturer, Criminal Law Department, Academy of the Ministry of Internal Affairs, 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 08-2024
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International Journal Of Law And Criminology
(ISSN
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VOLUME
04
ISSUE
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32-39
OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
According to several authors, the main goal of
introducing the plea agreement into the legislation is
to reduce the time of criminal investigation and reduce
the volume of court proceedings and emphasize that it
is to facilitate compensation for property damage
caused to victims.
B. Stefanos believes that an agreement on confession
of guilt allows, first of all, to accelerate the Proceedings
of a criminal case, reduce procedural costs, expand the
scope of application of dispositive principles,
anticipate the type and measure of punishment.
B. A. Saidov was more focused on the economic
aspects of the compromise Institute. He believed that
the application of the institution would result in "a
dramatic reduction in the expenditure of government
bodies at the stage of conducting the case before the
court; a decrease in the pre-trial, even in the period of
the trial, of prosess participants' conceit and
extravagance....”
.
V. Yu. In Melnikov's study, too, B. A. We will see a close
look at Saidov's opinion.
B. B. Murodov points out the following in this regard:
—
"the opportunity arises to quickly and
completely expose them, without spending a lot of
effort and time of the relevant authorities responsible
for investigating crimes of a serious and extreme type
committed...”
.
Other authors have pointed out the shortcomings of
this institution. For example B. X. Toleubekova and T.
B. Hvedelidze believes that this institution is contrary
to the presumption of innocence due to the fact that
the inquiry, preliminary investigation and trial are not
fully carried out in cases where a plea agreement is
concluded.
In a plea agreement, procedural actions are not carried
out to the extent that the person can be fully proven
guilty.
In our opinion, the inclusion of this institution in the
CCP has a positive value for the officials responsible for
criminal proceedings, the participants in the
proceedings and the state as a whole. However, it
should be taken into account that the main goal of
conducting criminal proceedings should be to fulfill the
tasks of the criminal process. We know that it is one of
the main tasks of the criminal process to solve crimes
quickly and completely, to ensure that every person
who commits a crime is given a fair punishment, and
that no innocent person is held responsible and
convicted. That is why the conclusion of the plea
agreement itself should not free the investigator,
investigator, prosecutor from the obligation to fully
and comprehensively investigate the crime, and the
court to carefully discuss each incident. Only then will
it be possible to ensure that all guilty persons are
punished, and innocent persons are not held
accountable.
It is of particular importance to ensure the mandatory
participation of a defense attorney when concluding a
plea agreement, because the defense attorney is an
additional guarantee that the rights of the person
under his protection will not be violated in the plea
agreement. In such cases, the defense attorney must
determine the voluntariness of the plea agreement,
and that no harassment or violence has been
committed against the suspect or the accused.
Because it is possible that various pressures and
coercion were applied to the suspect and the accused
by the state bodies responsible for criminal
proceedings.
For example, in 2021, the representative of the Oliy
Majlis of the Republic of Uzbekistan on human rights
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(ombudsman) received one of the largest number of
appeals related to the restriction of individual rights.
Based on the above, we can say that in plea bargain
cases, the independent participation of the suspect
and the accused in the criminal case, without any legal
knowledge, without a defense, may lead to illegal
restriction of his rights. That is why, even if the suspect,
the accused in such cases renounces the defense, the
investigator, the investigator should not accept it.
Based on international experience in this field, in the
United States, a defense attorney is required to be
present when a plea agreement is made. Under UK
criminal procedure, a plea agreement is made between
the prosecutor and the defense. In this case, the
accused confesses to the charges specified in some
clauses of the indictment, and the prosecutor stops the
criminal case on other clauses of the indictment. In
France, the initiator of the plea agreement can be not
only the accused and his defense, but also the
prosecutor and the investigating judge. German
Federation and in the Republic of Kazakhstan, the
participation of the defender is mandatory when this
agreement is being concluded.
In the current JPK of the Republic of Uzbekistan, it is
not clearly defined from when the defense attorney
must participate in the cases where the plea
agreement is being drawn up. This creates some
misunderstandings in the practice of judicial
investigation and diversity in the practice of law
enforcement.
One of the main tasks of the defense attorney in
relation to the plea agreement is to determine whether
the suspect or the accused correctly understands the
essence of this institution and the legal consequences
that will arise after the agreement is concluded.
Therefore, it is appropriate to ensure the participation
of the defense counsel from the time when the
investigator, the investigator expresses the desire to
enter into a plea agreement. If the person under
protection has misunderstood the nature of this
institution, the defender must explain it to him again
and plan the next sequence of actions depending on
the result. This procedure is currently the JPK of the
Republic of Kazakhstan (Article 67) and in the Criminal
Code of Ukraine (Article 52).
Based on the above, we propose to supplement the
second part of Article 5862 of the CCP with the
following words:
"From the time when the suspect, the accused
expressed a desire to enter into a plea agreement, the
participation of the defender is mandatory."
One of the problems with plea bargaining is that it is
rarely used in practice. Despite the fact that the above
institution has been included in the CCP for three years,
it has only been used 85 times in 2021, whereas, during
this period, 84,100 crimes were committed in our
country. It can be seen that the level of use of this
institute was only more than 0.10% of the crimes
committed during the year. In 2022, a plea bargain was
used for about 0.21 percent of all crimes tried in court.
This number is very low compared to foreign countries
where plea bargaining is provided for in the legislation.
For example, up to 90% of criminal cases in the USA, In
Germany, more than 70% are processed in this way.
It is important to note that when analyzing the data on
the persons who used this institution in our country, it
was found that most of them have a legal education or
work in law enforcement agencies. For example,
citizen A. He worked as a lawyer of the Bar Association
for International Legal Affairs, intentionally committed
crimes such as defamation, falsification of documents
and use of forged documents. The court, after listening
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to the conclusion of the public prosecutor, the
testimony of the defendant, found that citizen A.'s
guilt was proven by his statements, explanatory
letters, the conclusion of the main expert-criminology
center, the decision to approve the plea agreement,
and other evidence collected in the criminal case.
found Court approves plea agreement and convicts
defendant.
In our opinion, the following two factors are the reason
for the underuse of this institution:
the first is that the investigator, investigator,
prosecutor, court and lawyers do not have enough
information about this institution. In a survey
conducted on the knowledge of the content of the
institution of plea bargaining, it was found that 71% of
them do not have enough information about this
institution. . In order to solve this problem, it is
necessary to focus in detail on the content of this
institution during the training of officials responsible
for conducting criminal cases, lawyers, create video
tutorials that fully reveal its essence, and provide
practice staff with them;
the second is that the suspect, the accused, is unaware
of the existence of this institution. In the current CCP,
the question of which entity explains to the suspect
and the accused the right to request a plea bargain is
left open. Pursuant to Article 360 of the CCP, the
investigator must acquaint the suspect with the rights
set forth in Article 48 of the CCP. Among the rights
defined in the above articles is the right to file a
petition, but telling a suspect who does not have legal
knowledge that he has the right to file a petition is not
enough to ensure his rights. Because there are
requests given at the stage of the preliminary
investigation and inquiry, which directly affect the
punishment assigned to the person found guilty in the
future, and it is impossible not to explain them
separately.
A motion to enter into a plea bargain is one of those
motions that require explanation. The investigator
should explain to the accused that he can make a
request to enter into a plea agreement, its essence,
that in the event that he enters into this agreement
with the prosecutor, he may be sentenced in the future
in the amount or up to half of the maximum sentence
provided for in the relevant article of the Special part
of the Criminal Code. Failure to do so will result in the
institution of plea bargaining not working across the
board and for everyone. Because, in accordance with
Article 5861 of the CCP, the plea agreement is made for
crimes of low social risk, minor crimes and serious
crimes. It is not necessary for the defender to
participate in such cases. If the investigator, the
investigator, the defense attorney does not explain the
nature of the plea agreement to the suspect and the
accused, they will not even know that such an
institution exists. In our opinion, at present, the
institution of plea bargaining is applied only to persons
who have a defense attorney or who have sufficient
knowledge in the legal field. From the practical
example given above, we can see that the institution
of the plea agreement was applied to the lawyer.
In our opinion, the investigator should explain to the
person not only the institution of the plea agreement,
but also other motivational norms that may affect him
in sentencing, including articles of the CC 55, 571, 661.
For example, in Article 55 of the CC, mitigating
circumstances are indicated, which are as follows:
a) to plead guilty, sincerely repent, or actively assist in
solving a crime;
b) voluntary elimination of the damage caused;
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c) committing a crime due to difficult personal and
family conditions or in other difficult situations;
g) committing a crime due to coercion or financial,
service or other dependence;
d) committing a crime in a state of strong emotional
excitement caused by violence, severe insult or other
illegal actions of the victim;
e) commiting a crime beyond the reasonable limits of
necessary defense, last necessity, causing harm in the
case of apprehending a person who has committed a
socially dangerous act, taking a reasonable risk related
to professional or economic activity;
j) committing a crime by a minor;
z) crime committed by a pregnant woman;
i) committing a crime under the influence of the
victim's illegal or immoral behavior.
Also, Article 571 of the current CC provides the
following provision:
The term or amount of the punishment in the event
that the person pleaded guilty, sincerely repented or
actively helped to solve the crime, voluntarily
eliminated the damage caused, and there are no
aggravating circumstances of the punishment
provided for in the first part of Article 56 of the Criminal
Code shall not exceed two-thirds of the maximum
penalty provided for in the relevant article of the
Special Part of the Criminal Code .
The fact that a person who has committed one of the
crimes specified in Article 661 of the current CC may
reconcile with the victim and close the criminal case
against him is not reflected in Articles 46, 48 of the CCP.
In 2022, 15,315 persons were released from criminal
responsibility as a result of the use of the institution of
reconciliation. Otherwise, in 2018-2020, the criminal
cases closed by reconciliation made an average of
22.6% of the total closed criminal cases, while this
indicator reached 58.5% in Russia in 2019.
Explaining the provisions of the above articles to the
suspect and the accused will lead to the following
positive results:
first, articles 55, 571, 572, 661 of the CC are widely used
in practice. This is A. J. As Saidov rightly noted, it will
lead to a reduction in the state budget spending;
secondly, it has a positive effect on the effective
implementation of the right to defense;
thirdly, compensation of the mentioned damage is
achieved in a short period of time. In 2021, it was
determined that 1,293,932,797 soums of damage were
caused to individuals in the criminal cases investigated
by the IABs, so 956,773,034 soums were collected
before the criminal case was completed. . From these
statistics, it can be seen that the issue of damage
recovery is one of the most severe problems that exist
in practice. B. A. During his study, Saidov conducted an
interview with more than a hundred victims and found
that the compensation of material (spiritual) damage
to most of them was the first and main factor in making
them "agree";
fourth, leads to time savings in conducting criminal
cases. In 2022, 39,555 criminal cases were completed
by the preliminary investigation bodies of the IIO, of
which 19,120 were investigated for up to 1 month,
14,466 for up to 2 months, and 5,931 for up to 3 months.
This situation and the fact that there are still many
criminal cases under investigation show that our
suggestions are extremely relevant.;
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fifthly, it allows all citizens to use the benefits available
in the law equally. For example, in the present case, the
investigator may or may not introduce the suspect or
the accused to the motivating norms. Therefore, such
benefits are currently known mainly to those who hire
a lawyer, because the lawyer can explain to his client
that there are incentive norms in the CC. But we know
that not always a person has the desire or opportunity
to hire a lawyer. Such suspects and defendants cannot
fully and effectively use all the opportunities provided
to them under the law. In our opinion, this is unfair.
After all, as the President of the Republic of Uzbekistan
Shavkat Mirziyoyev noted, "people can tolerate
everything, but they cannot tolerate injustice”
;
sixth, it serves to prevent possible corruption cases by
the Inquirer and the investigator. For example, in the
case of the current interrogator, the investigator can
"help" the suspect, to alleviate the punishment, as if he
were a person who would make the way for something
seemingly impossible, from which some kind of
material benefit can be fulfilled. And when the
incentive norms are directly explained to the suspect
and the accused, the perpetrator of the crime realizes
that the easing of punishment is not the authority of
the Inquirer or investigator, but a privilege granted to
him by legislation.
B. A. In his study, Saidov put forward the idea of
supplementing articles 46, 48 of the current SSR with
the sentence "participation in the trial of procedural
agreements, but it was not mentioned that the
essence of the procedural agreement should be
explained to the suspect and the accused. In our
opinion, By putting B. A. Saidov's proposal into
practice, it is impossible to achieve widespread use of
incentive norms in criminal proceedings. Because
stating that the suspect, the accused has the right to
"participate when procedural agreements are
considered in court" has the same general meaning as
the right to "participate in sessions of the court of first
instance and appellate instance". That is, the suspect,
the accused cannot get answers to the questions of
what is the agreement on the confession of guilt, what
kind of crimes such an agreement is made for, whether
this agreement can be applied to the crime he
committed, what reliefs are available for him.
Now let's pay attention to the accumulated
international experience in explaining the motivational
norms to the suspect and the accused. In the Republic
of Kazakhstan (CCP, Articles 64, 65) it is established
that the suspect, the accused should be explained the
rights to appeal to the prosecutor about reconciliation
with the victim, as well as the conclusion of a
procedural agreement. In the Republic of Azerbaijan
(CCP, articles 90, 91) it is stated that the suspect and
the accused should know that they can use the right to
reconcile with the victim, as well as be fully aware of
their rights specified in the CCP. If we focus on the CCP
of the Republic of Estonia (Article 34), we can see that
it is stipulated that the official of the state div
responsible for conducting the criminal case must
explain the suspect's rights, such as making an
agreement.
Based on the analysis of the current CCP, judicial
investigation practice and the experience of foreign
countries, the first part of Articles 46 and 48 of the CCP
after the words "that his testimony can be used against
him as evidence in a criminal case" is replaced by
"Articles 55, 571, 572, 661 of the Criminal Code - We
believe that it is necessary to fill in the words "require
that the content and essence of the articles be
explained" and impose the obligation on the inquirer
and investigator to explain the content and essence of
these institutions to the suspect and the accused.
CONCLUSION
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In conclusion, it can be said that the timely and
complete explanation of the rights established by the
law to the person serves to more effectively implement
the right to protection, has a positive effect on the
application of principles such as truth-finding and
legality.
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//
URL:
https://zenodo.org/record/6480997#.Yp2y3qhByU
k (
мурожаат
ва
қ
ти
: 06.06.2022).
