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13
International Journal Of Law And Criminology
(ISSN
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04
ISSUE
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AGES
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13-22
OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
This article analyzes the admissibility of evidence in criminal proceedings. The norms of the Criminal Procedure Code
of the Republic of Uzbekistan on the admissibility of evidence are analyzed. Based on the results of the analysis and
research, the author's substantiated proposals and recommendations were developed.
KEYWORDS
Crime, evidence, admissibility, gathering evidence, examining evidence, evaluating evidence, proving.
INTRODUCTION
Today, in the process of ongoing judicial and legal
reforms in our country, regulatory legal acts adopted
and aimed at strengthening the protection of
individual rights during pre-trial investigation,
investigation and trial are also aimed at strengthening
the guarantees of the rights and legitimate interests of
persons participating in the criminal process, in
particular, the suspect and the accused.
Because, on the basis of these foundations, in recent
years, in Uzbekistan, in order to increase the
effectiveness of activities aimed at identifying,
collecting, verifying, evaluating evidence and ensuring
the admissibility of evidence, a number of laws and
regulatory legal acts have been adopted and put into
effect, but an analysis of the norms of the Code of
Criminal Procedure and criminal cases conducted by
practical bodies shows that activities aimed at ensuring
the admissibility of evidence are not working
sufficiently, and there are legal gaps and mutually
inconsistent norms in the norms of the law.
However, these mutually incompatible norms require
first studying the rules established in the norms of the
Code of Criminal Procedure.
Because, according to the third part of Article 95 of the
Code of Criminal Procedure, the admissibility of
evidence collected in the established procedure is
subject to the conditions established in 5 articles of the
Code of Criminal Procedure.
Research Article
SOME PROBLEMS OF ENSURING THE ADMISSIBILITY OF EVIDENCE IN
CRIMINAL PROCEEDINGS
Submission Date:
November 29, 2024,
Accepted Date:
December 03, 2024,
Published Date:
December 09, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue12-03
Tadjiev Anvar Aminovich
Independent Researcher of Academy of the Ministry of Internal Аffairs of the 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.
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Publisher:
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That is, according to it, “Evidence shall be recognized
as admissible only if it has been collected in the
established procedure and complies with the
conditions provided for in Articles 88, 90, 92-94 of this
Code.”
Summarizing these rules, for an argument to be
admissible:
first of all, the procedure for its collection established
by law has been followed;
Secondly, the evidence must comply with the
conditions stipulated in Articles 88, 90, 92-94 of the
Code of Criminal Procedure.
If the evidence was collected in accordance with the
procedure established by law, but does not comply
with the conditions stipulated in Articles 88, 90, 92-94
of the Code of Criminal Procedure, it cannot be
assessed as admissible evidence and used in a criminal
case.
Similarly, evidence that complies with the conditions
stipulated in Articles 88, 90, 92-94 of the Code of
Criminal Procedure, but was not collected in
accordance with the procedure established by law,
cannot be assessed as admissible evidence.
That is, in order to prevent different interpretations of
the requirements of criminal procedural law at the pre-
investigation, investigation and trial stages of the
criminal process, the subjects carrying out the proof
must realize their high responsibility.
As stipulated in the Resolution No. 24 of the Plenum of
the Supreme Court of the Republic of Uzbekistan
dated August 24, 2018 “On Cert
ain Issues of the
Application of the Norms of Criminal Procedure Law on
the Admissibility of Evidence,” “Any deviation by the
inquiry officer, investigator, prosecutor, and court
from the strict implementation and observance of the
norms of the law, regardless of the reason for which it
occurred, shall lead to the recognition of the evidence
obtained in this way as inadmissible (invalid).
"Inadmissible evidence has no legal force and cannot
be used to prove the circumstances provided for in
Articles 82-84 of the Criminal Procedure Code and
cannot be used as a basis for accusations." .
Cases of using unacceptable evidence as a basis for
accusations in criminal proceedings are a common
occurrence in the activities of investigative bodies and
courts, and these cases can be seen in the example of
acquittals issued by courts in our country in recent
years.
In particular, in the past year 2023 alone, 1,244 people
were acquitted and rehabilitated by courts shows that
the above opinion is valid.
It is worth noting that the analysis of acquittals allows
for a more in-depth study of the current state of
ensuring the admissibility of evidence in criminal
proceedings, existing problems, violations of the law in
the process of gathering, checking and evaluating
evidence.
In addition, it is possible to assess the quality of pretrial
investigation, investigation, and trial by studying
acquittals in situ .
According to D.J. Suyunova, Y.Y. Koniushenko, N.S.
Nguindip, “The procedural significance of acquittal is
one of the most important procedural methods of
acquitting the defendant and eliminating injustice. It
not only provides a statement about the procedural
errors made by the preliminary investigation bodies,
but also eliminates this error by rehabilitating the
defendant, who was found innocent. In the verdict of
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acquittal, all previously performed procedural actions
are accounted for.” .
In our opinion, based on the above and in order to
provide a detailed description of the existing problems
in ensuring the admissibility of evidence in criminal
proceedings, it is appropriate to classify them as
follows:
1) organizational problems related to ensuring the
admissibility of evidence;
2) theoretical problems related to the admissibility of
evidence;
3) problems related to the existence of gaps and
inconsistencies in the legislation on the admissibility of
evidence;
4) problems related to the lack of legal knowledge,
skills and qualifications of the subjects of proof
responsible for determining the admissibility of
evidence.
1. Organizational problems related to ensuring the
admissibility of evidence.
The first of the organizational problems related to
ensuring the admissibility of evidence is the extreme
complexity of the organizational requirements for
collecting evidence in criminal procedural legislation.
This can be considered as organizational problems
related to the preparation and conduct of pre-
investigation checks, investigation, procedural actions
during the trial, as well as operational-search
measures.
As B.A. Rajabov
puts it, “The subject of proof, who is
trying to ensure the admissibility of evidence, has to
spend a lot of effort and effort and incur excessive
costs to turn a single piece of factual information into
admissible evidence. This also negatively affects the
effectiveness of the effective investigation of criminal
cases or the provision of justice.” .
For example, “the head of the company was caught
accepting a bribe in his office. He asked the National
Security Service and the prosecutor’s office to draw up
a report in the offices of these bodies, fearing that it
would damage the company’s reputation and
negatively affect his work. Thus, the procedural
document stating that the head of the company had
accepted a bribe was drawn up in the prosecutor’s
office, but the place of its drawing up was indicated as
the head of the company’s office. During the trial, the
defense attorney drew the attention of the court
participants to this very fact. He filed a motion to
question witnesses on this issue. The witnesses
questioned as witnesses confirmed that the report
confirming the acceptance of the bribe was drawn up
in the prosecutor’s office and that they signed it there.
However, in accordance with Article 90 of the Criminal
Procedure Code, the information recorded in the
report of the investigative action is recognized as
evidence. In this case, the fact that the head of the
company accepted a bribe in his office casts doubt on
the fact that the information in the document drawn
up on this case was found inadmissibl
e by the court.” .
As can be seen, the criminal procedural law not only
establishes a very precise procedure for collecting and
formalizing evidence, but also clearly regulates the
place, time, form, method of their formalization, by
whom they are formalized, and other such criteria. I.V.
Abrosimov, paying special attention to the errors made
by the subjects of proof in organizational matters
when finding evidence inadmissible, notes that the
violations noted in his research work correspond to the
requirements of the criminal procedural law, which
determine the timing, procedural order of the
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investigative
action;
the
composition
of
its
participants;
the
procedure
for
collecting,
consolidating and verifying evidence, and that these
violations can be general for all investigative actions
and specific, specific to individual investigative actions,
as well as eliminable and non-eliminable, specific and
vague emphasizes.
I.V. Abrosimov's opinion, it can be said that one of the
main reasons for the future assessment of the
evidence collected in the case as unacceptable
evidence is the violations of the law committed by the
subjects of proof in this regard.
Therefore, in order to ensure the admissibility of
evidence, the subjects of proof, along with having the
necessary knowledge and skills, must unconditionally
comply with the requirements of criminal procedural
legislation in the processes of collecting, examining
and evaluating evidence.
One of the organizational problems associated with
ensuring the admissibility of evidence is the condition
of involving at least two adult citizens who are not
interested in the outcome of the case as witnesses, as
established in Part Two of Article 73 of the Code of
Criminal Procedure.
Although this condition may not seem like a problem at
first glance, in judicial and investigative practice, it
creates unnecessary hassles in the process of
conducting procedural actions, such as searching for
witnesses, obtaining their consent, and taking them to
the place where the investigative action is being
conducted, and occupying the witnesses' time until all
processes are completed.
However, the legislator, in addition to first setting an
age limit for witnesses participating in the case, also
sets conditions related to their being a citizen (a person
without citizenship is not involved) and not having an
interest in the outcome of the case.
Because "the complexity of the mechanism of criminal
proceedings, including the procedure for proving, and
the criminal procedural requirements for the process
of proving, is counterproductive to the effectiveness
of the activity, and it is important to achieve simplicity
and ease of this mechanism in ensuring compliance
with the general conditions of proof. It is complexities,
artificial obstacles and some inconsistencies in the law
in the mechanism of criminal proceedings that hinder
the timely and complete implementation of the tasks
of the criminal procedural legislation and create
problematic situations .
It is worth noting that, in accordance with paragraph 8,
subparagraph b) of the Resolution of the Plenum of
the Supreme Court of the Republic of Uzbekistan
dated August 24, 2018 No. 24 “On Certain Issues of the
Application of the Norms of the Criminal Procedure
Code on the Admissibility of Evidence”,
if an interested
person in the case, including employees of law
enforcement agencies or other persons assisting them
on a public basis, participated in the investigative
action as an eyewitness, the collected evidence shall be
considered inadmissible.
According to this rule, in order to ensure the
admissibility of evidence, the subjects of proof are
required to take into account not only the age and
citizenship qualifications of the eyewitnesses, but also
the qualifications established for the position they
hold.
In our opinion, in order to find a solution to such
problems in the future, it is advisable to supplement
Article 73 of the CPC with a new part and rephrase it as
follows:
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"In special cases specified in this Code, investigation
and other procedural actions can be conducted
without the participation of impartial people, using
technical means by continuous video recording."
In this case, if violations of the law are observed in the
conduct of investigative actions using technical means
without the participation of impartial persons, the
collected evidence is considered unacceptable and
cannot be used as evidence. In addition, before the
investigation, an official of the investigative div, an
inquiry officer, an investigator, a court, when
consolidating evidence, may not only take the actions
specified in Part Four of Article 91 of the Criminal
Procedure Code (1) inspection of the scene of the crime
in cases of especially serious crimes; 2) search; 3)
examination of evidence at the scene of the crime; 4)
investigative experiment; 5) detention of a person; 6)
refusal to provide a defense lawyer; 7) personal search
and seizure during the detention of a person) rather, it
will be possible to carry out all procedural actions
specified in CPC using technical means without
impartial participation.
2. Theoretical problems related to the admissibility of
evidence.
The core of the concepts of admissible evidence or
inadmissible evidence is the term evidence. Evidence
that is found inadmissible in the proceedings is
deprived of the status of evidence and is not allowed
to be used in the subsequent stages of the criminal
process.
In our opinion, the application of the term “evidence”
to inadmissible evidence that is not used in the
subsequent stages of the criminal process does not
correspond to the rules of logic. Because, according to
Article 81 of the Criminal Procedure Code, the basis of
evidence is true information.
The fact that evidence that is considered inadmissible
consists of true information is always in doubt or may
consist of incorrect information.
Therefore, in our opinion, it is appropriate to use the
term “evidence” in criminal procedural theory and
legislation only in relation to admissible evidence.
As E.E. Kurziner rightly noted, “Acceptable evidence
should be considered evidence whose collection and
verification processes do not cast doubt on the
reliability of the evidence and the observance of the
constitutional rights and legitimate interests of
citizens.” E.A. Kupryashina, in her research work,
specifically addressed the issue of “Inadmissible
evidence,” emphasizing that such information does
not have legal force and cannot be used as a basis for
accusations, and proposed replacing “Inadmissible
evidence” with the words “Other information
obtained in violation of the requirements of the Code.”
.
At this point, we fully agree with this opinion of E.A.
Kupryashina and consider it incorrect to call this
information evidence, even in any form (for example,
inadmissible evidence), if it was obtained in violation of
the requirements established by criminal procedural
legislation.
It should be noted that in the analysis of the criminal
procedural legislation of foreign countries, one can see
different approaches to this issue.
In particular, in Article 105 of the Criminal Procedure
Code of the Republic of Armenia Instead of the phrase
"inadmissibility of evidence," the phrase "materials
considered inadmissible as evidence" was used. Of
course, this can be considered a positive experience.
Article 94 of the Criminal Procedure Code of the
Republic of Moldova instead of the sentence
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"inadmissibility
of
evidence"
the
sentence
"Information considered inadmissible as evidence"
was used.
Article 319 of the Japanese Criminal Procedure Code
states that confessions obtained under duress, torture,
or intimidation, confessions made after prolonged
detention in order to admit guilt, and any other
statements not given voluntarily, are not only
admissible or inadmissible evidence, but are also not
considered evidence at all. . That is, in the criminal
procedural
legislation
of
Japan,
instead
of
“inadmissible evidence”, information that is not
considered evidence is used.
In our opinion, it is appropriate to study this positive
experience in the criminal procedural legislation of
countries such as Armenia, Moldova and Japan in the
Criminal Procedural Code of the Republic of
Uzbekistan.
In this regard, it should be noted that the criminal
procedural legislation of a number of foreign countries
studied by us stipulates that no evidence has a
predetermined legal force (Article 136 of the CPC of
Turkmenistan , Tajikistan CPC 88-m , Georgia 82nd
Criminal Procedure Code , Moldovan Criminal Code
101st , Estonia CPC 61st , Ukraine CPC 94-m ) It is also
appropriate to emphasize.
These analyses determine that not only inadmissible
evidence, but also admissible evidence does not have a
predetermined legal force, and in our opinion, this rule
can also be assessed as a positive experience in the
criminal procedural legislation of foreign countries.
3. Problems related to the existence of gaps and
inconsistencies in the legislation on the admissibility
of evidence.
The Criminal Procedure Code does not provide a
precise definition of the admissibility of evidence, and
it is merely a reference provision, making it difficult to
understand the detailed procedure.
More specifically:
firstly, in Article 95 of the CPC, the legislator limited
himself to referring to compliance with the rules of
Articles 87, 88, 90, 92-94 of this law, without
expressing in specific sentences the requirements for
when evidence may be admissible;
secondly, although Article 95-1 of the CPC lists
information that should be considered inadmissible as
evidence, these procedural rules repeat the procedural
rules in a number of norms of the law;
Thirdly, it is difficult to compile a precise list of
violations of the rules on the inadmissibility of evidence
in cases of actions contrary to this law, as provided for
in Article 95-1 of the Code of Criminal Procedure, and
this list contains a number of vague requirements of
the Code, including the phrase "obtained in violation of
the requirements of this Code" in this article.
Therefore, in our opinion, it is expedient to develop the
necessary recommendations to eliminate these gaps
and inconsistencies in the legislation in the future, as
well as to prevent violations of the law in this regard by
the entities carrying out the proof.
Considering that the issue of determining the
admissibility of evidence is resolved as a result of its
assessment by the entities carrying out the proof,
special attention should be paid to the mandatory
consideration of the following:
firstly, whether the entity authorized to perform
procedural actions aimed at determining evidence has
the right to perform this action;
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secondly, the admissibility of the source that
constitutes the content of the evidence;
thirdly, the compliance of the procedural actions taken
to collect evidence with the requirements of the law;
fourthly, it is necessary to check and evaluate the
correctness of the procedure for carrying out the
procedural action that serves as a means of collecting
evidence .
4. Problems associated with the lack of legal
knowledge, skills, and qualifications of the subjects of
proof responsible for determining the admissibility of
evidence.
Evaluating the admissibility of evidence requires first of
all that the subjects of proof have the necessary
knowledge, skills and qualifications in the field of
jurisprudence, in particular criminal procedural law,
and in accordance with the requirements of regulatory
legal documents issued by the legislature and
competent authorities in this regard.
Already, in the first part of Article 95 of the CPC, which
defines the rules for the evaluation of evidence It is not
for nothing that the subjects of proof should evaluate
the evidence based on their inner convictions, acting in
accordance with the law and legal consciousness,
based on a thorough, complete, comprehensive and
objective consideration of all the circumstances of the
case.
The analysis of criminal cases conducted in judicial-
investigative bodies does not deny that the same
evidence is evaluated differently by two subjects. This
idea is also confirmed by the analysis of the studied
acquittals.
It should be noted separately that the different
approaches to assessing evidence cannot be fully
attributed to the legal literacy of the subjects of proof.
Because in this matter, it is also important to take into
account the differences in the powers and interests of
the investigator, investigator, prosecutors and the
court in assessing evidence. Because the investigator,
investigator, prosecutor, when assessing evidence,
pay more attention to supporting the accusation in
court. The court, however, when assessing evidence,
acts within the framework of the powers established
for it by criminal procedural legislation, without being
bound by these obligations. .
It is not for nothing that the subjects of proof should
evaluate the evidence based on their inner convictions,
acting in accordance with the law and legal
consciousness, based on a thorough, complete,
comprehensive and objective consideration of all the
circumstances of the case.
The analysis of criminal cases conducted in judicial-
investigative bodies does not deny that the same
evidence is evaluated differently by two subjects. This
idea is also confirmed by the analysis of the studied
acquittals.
It should be noted separately that the different
approaches to assessing evidence cannot be fully
attributed to the legal literacy of the subjects of
evidence. Because in this matter, it is also important to
take into account the differences in the powers and
interests of the investigator, investigator, prosecutors
and the court in assessing evidence. Because the
investigator, investigator, prosecutor, when assessing
evidence, pay more attention to supporting the
accusation in court. The court, however, when
assessing evidence, acts within the framework of the
powers established for it by criminal procedural
legislation, without being bound by these obligations.
.
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Therefore, in our opinion, it is advisable to develop
proposals and recommendations to enrich the
knowledge of the subjects of proof responsible for
determining the admissibility of evidence so that they
do not violate the law in this regard in the future.
It should be noted that in some cases, the subjects of
proof responsible for determining the admissibility of
evidence do not follow the laws of the science of
"Logic" in the process of evaluating evidence.
Because compliance with logical laws is a necessary
condition for criminal procedural knowledge, since it
guarantees the achievement of real results in solving
the tasks that arise in the process of knowledge,
therefore, violations of both legal instructions and
logical laws should be equally prohibited in the process
of proof. .
E.D. Gorevoy emphasizes in his research work the
importance of logical thinking in the evaluation of
evidence. He states that “The logical element
represents the evaluation of evidence as an intellectual
activity carried out in accordance with the basic laws of
formal logic, in compliance with the scientific
methodology of knowledge, and associated with
thinking about the value of probative information.”
insists that.
One can fully agree with this opinion, as Article 95 of
the
Code of Criminal Procedure states that “The inquiry
officer, investigator, prosecutor and court shall
evaluate the evidence based on their inner convictions,
acting in accordance with the law and legal
consciousness, based on a thorough, complete,
comprehensive and impartial consideration of all
circumstances in the case.” Inner conviction is closely
related to acting in accordance with the law and legal
consciousness, as well as to the logical thinking abilities
of the inquiry officer, investigator, prosecutor and
court.
Therefore, drawing conclusions from the above
analysis, we believe that in order for the subjects of
proof responsible for determining the admissibility of
evidence to avoid future violations of the law in this
regard, it is advisable to recommend the following:
Enrich the lecture courses and working subject
programs of relevant disciplines of higher educational
institutions under the control of law enforcement
agencies with examples, cases and case studies
reflecting situations related to violations of the
legislative requirements on the admissibility of
evidence in judicial and investigative practice;
Organize and conduct at least two one-day advanced
training courses with inquiry officers and investigators
on the topic "Procedural legislative requirements on
the admissibility of evidence and shortcomings in its
implementation" with the involvement of experienced
professors and teachers of higher educational
institutions under the control of law enforcement
agencies and experienced employees of the field;
To introduce a new subject called "Logical Thinking"
into the curricula of higher education institutions
under the jurisdiction of law enforcement agencies and
ensure that it is taught after the semester (study
module, etc.) in which the subject "Logic" is taught. In
our opinion, taking into account these proposals and
recommendations will serve as a solution to a number
of problems related to the admissibility of evidence
and will help to eliminate gaps in this regard.
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Volume 04 Issue 12-2024
22
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
04
ISSUE
12
P
AGES
:
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оид
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онуни
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ўллашнинг
айрим
масалалари
тў
ғ
рисида”ги
24-
сонли
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арори
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Ўзбекистон Республикаси Президентининг 2018
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тизимини
тубдан
такомиллаштириш
чора
-
тадбирлари
тў
ғ
рисида”ги
П
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сон
қ
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//
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24.
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фу
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ароларнинг
ҳ
у
қ
у
қ
ва
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кафолатларини
кучайтириш
бўйича
чора
-
тадбирлар
қ
абул
қ
илинганлиги
муносабати
билан
Ўзбекистон
Республикасининг
айрим
қ
онун
ҳ
ужжатларига
ўзгартиш
ва
қ
ўшимчалар
киритиш
тў
ғ
рисида”ги
ЎР
Қ
-470-
сон
Қ
онуни
//
http://lex.uz/docs/3609511.
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¬
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С. 7
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