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68
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
11
P
AGES
:
68-75
OCLC
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1121105677
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
The study examines the functioning of the institute of filing motions and complaints in criminal proceedings, focusing
on issues related to its regulatory framework within the Code of Criminal Procedure of the Republic of Uzbekistan. It
highlights the need to establish this institute as an independent legal mechanism, detailing forms of submission,
eligible persons, and procedural requirements. The research emphasizes practical and theoretical advancements,
including the clarification of definitions, harmonization with international standards, strengthening the rights of the
parties, and developing timeframes for efficient resolution. Issues such as insufficient regulation, arbitrary denial of
petitions, and the ineffectiveness of complaint mechanisms at pre-trial stages are addressed. Comparative analysis
with foreign legal systems reveals best practices for reforming procedures. Recommendations include ensuring
reasoned decisions, timely responses, and disciplinary accountability for unjustified actions. The article proposes
extending deadlines for post-investigation actions to enhance the rights of defense counsel and ensure thorough
investigations, advocating for a balanced and effective approach to protect the rights of participants in criminal
proceedings.
KEYWORDS
Criminal proceedings, motions, complaints, Code of Criminal Procedure, Uzbekistan, procedural regulation,
participants' rights, pre-trial investigation, international standards, legal reform.
INTRODUCTION
Research Article
ISSUES OF THE FUNCTIONING OF THE INSTITUTE AND WAYS FOR ITS
IMPROVEMENT
Submission Date:
November 20, 2024,
Accepted Date:
November 25, 2024,
Published Date:
November 30, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue11-09
Igilikov Jaksylyk Joldasbaevich
Applicant at Karakalpak State University, 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 11-2024
69
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
11
P
AGES
:
68-75
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
The study of the institute of filing motions and
complaints in criminal proceedings emphasizes some
issues that should be regulated in the Code of Criminal
Procedure of the Republic of Uzbekistan.
One of these issues is the establishment of the institute
of filing motions and complaints as an independent
institute, which will establish the form of their filing,
persons who have the right to file them and other
issues.
The practical and theoretical novelty of the settlement
of motions and complaints in the Code of Criminal
Procedure may have several aspects that are important
both for the practice of law enforcement and for the
development of the theoretical basis of criminal
procedure. Examples may include:
1. Clarification and expansion of definitions, which is
expressed by introducing clear and precise definitions
of motions and complaints, distinguishing them and
clarifying their scope of application in order to
eliminate ambiguities and clarify procedures.
2. modification of the forms of petitions and
complaints, namely the proposal to modify the
established forms of complaints that can be applied in
criminal proceedings, taking into account the problems
in resolving them.
3. Emphasizing the rights of the parties, which includes
strengthening the rights of the parties to a motion or
complaint, taking into account the principles of
fairness and the protection of individual rights.
4. Taking into account international standards,
harmonizing definitions with international standards
and best practices, which can strengthen the country's
position in the global context and ensure compliance
with modern standards of justice.
5. Theoretical aspects on the development of new
theoretical concepts related to the nature and
functions of motions and complaints, which can
contribute to the development of the science of
criminal procedure.
METHODOLOGY
Emphasizing the analysis that was made earlier, we
believe that problems in practice may arise in relation
to the form of filing complaints rather than petitions,
since complaints by their nature are retrospective in
nature. In other words, a complaint is filed against
certain decisions and actions (inaction) of inquirers,
investigators and must contain specific circumstances
that are subject to appeal.
Having analyzed the trend that is observed in law
enforcement practice, we found that when oral
complaints are filed at the pre-trial stage of criminal
proceedings, they are recorded in the protocols of
investigative actions as comments of participants who
take part in the investigative action.
However, often these complaints remain without
proper attention and are not resolved further, as they
do not meet the formal requirements for filing
complaints, as complaints must have the following
features for their consideration and resolution:
- The addressee to whom the complaint is filed
(because the complaint cannot be filed in the name of
the investigator, inquirer by virtue of the fact that their
decisions and actions (inaction) are being appealed
and they cannot consider a complaint against their
own decisions );
- The person who files the complaint (since the circle of
persons who can file complaints in criminal cases is
limited);
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- The decision and action (inaction) that is being
appealed;
- Specific circumstances of the decisions that are
subject to appeal;
- The reasonableness of the complaint, as due to
workload, the official responsible for resolving the
complaint may not understand the reasons and
justification for the complaint;
- Date and signature of the person who submits the
complaint, as the date establishes the deadlines for the
resolution of complaints, and the signature confirms
the fact that the person agrees and supports the
complaint.
RESULTS
In our opinion, compliance with these requirements is
necessary for the correct and timely consideration and
resolution of complaints, which will ensure the proper
functioning of the institute of appeal as a way to
protect the rights of participants in criminal
proceedings.
In comparison with complaints, petitions can be filed
both in writing and orally, as oral petitions are recorded
in the records of investigative actions and court
hearings, as well as petitions are filed directly to the
inquirer and investigator, who are conducting the
proceedings in the criminal case. And this circumstance
does not prevent their consideration.
2. Timing of consideration and resolution of motions
and complaints in criminal proceedings also plays an
important role, as timely consideration of motions and
complaints in criminal proceedings contributes to the
effective conduct of the investigation. Absence of
delays allows for prompt decision-making and
suppression of possible violations.
Quick and clear decisions on motions and complaints
can prevent abuse and manipulation of the parties.
Long waits for a decision can expose the system to the
risk of corruption or undue influence.
It should not be forgotten that the purpose of this
scientific work is to study the institute of filing motions
and complaint as ways to protect the rights of
participants in criminal proceedings. This institution,
although formally exists in criminal proceedings, but it
is not studied and regulated at the appropriate level.
This factor is the reason for the ineffectiveness of
petitions and complaints at the pre-trial stage to
protect the rights of participants in the process. It is for
this reason that the time limits should be regulated, as
the failure to comply with the time limits should be
punishable by the persons to whom these petitions
and complaints are sent.
Analysis of studies of the practice of some countries,
where the time limits for consideration and resolution
of motions and complaints are regulated, reveals that
this time limit for resolution of motions and complaints
differs in some countries. In particular, Russia and
Kazakhstan provide for immediate decision-making on
applications, and if it is not possible to make an
immediate decision, the relevant decision is made
within 3 days. This provision in the Republic of Moldova
is regulated by other terms, namely, if there is no
possibility of immediate resolution of the application,
the decision is made no later than 15 days after its
receipt.
However, having studied the experience of other
foreign countries, we believe that the petition should
be resolved immediately after its receipt, and if there is
no possibility to immediately decide on the petition,
the decision shall be made within 3 days at the latest.
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The reason why we have come to this conclusion is that
the prompt resolution of motions has a positive impact
on the functioning of the institution of filing motions,
as it gives the parties the opportunity to influence the
course of the investigation within the limits of the law.
Also, various circumstances may arise that require the
examination of additional materials. In such cases, the
decision should be made within 3 days at the latest, as
this term is widely and effectively applied in practice in
some countries with the Romano-Germanic legal
system.
3. The time limits for consideration and resolution of
complaints differ from the time limits for resolution of
petitions, because if petitions are submitted directly to
the person conducting the criminal proceedings,
complaints are submitted to the heads of the div of
inquiry, investigative department or prosecutor at the
pre-trial stage of criminal proceedings.
The reason for this is that it is these persons who can
consider and resolve complaints about decisions and
actions (inaction) of inquirers and investigators. Also at
the time of filing complaints, the heads of the div of
inquiry, investigative department or prosecutors, as a
rule, are not aware of the circumstances of the case,
for which the complaint is filed for this reason in each
such case these persons need time to consider the
subject of the complaint and take appropriate
decisions.
In addition, as one of the most progressive countries in
the application of innovations in criminal procedural
legislation is the Republic of Kazakhstan. Under article
105 of the Code of Criminal Procedure, the procurator,
the head of the investigative department and the head
of the div conducting the inquiry must consider the
complaint and notify the complainant of the decision
within seven days of its receipt. Complaints about
violations of the law during detention, recognition as a
suspect, qualification of the suspect's act, suspension,
unauthorized inspection, search, seizure, temporary
restriction on the disposal of property, suspension of
transactions and other operations with property shall
be considered within three days of receipt. In
exceptional cases, when it is necessary to request
additional materials or take other measures to verify
the complaint, it is allowed to consider the complaint
within fifteen days with notification of the person who
filed the complaint.
DISCUSSION
We have studied the legislation of some other
countries, which fix the terms of appealing decisions
and actions (inaction) of inquirers, investigators, and
came to the conclusion that the terms of consideration
of complaints about decisions and actions (inaction) of
inquirers, investigators should be no later than 3 days,
and in cases where it is necessary to request and study
additional documents, up to 15 days, of which the
applicant must be notified.
In this way, it is possible to provide those responsible
for reviewing the complaint with sufficient time to
make a correct and comprehensive decision.
4. Further, attention should be paid to the persons who
have the right to file petitions and complaints, as well
as to the persons responsible for their consideration
and resolution.
This issue is also relevant, as it is necessary to
distinguish the persons who have the right to file
motions in criminal cases, because if everyone has
access to file motions, it may lead to artificial
prolongation of procedural deadlines. So, for example,
if a person who is not related to the criminal case will
file motions, its consideration may lead to improper
course of the investigation and expiration of the terms
of the preliminary investigation.
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As a result of the conducted research and analysis of
theory and practice, we found that the list of these
persons differs in some countries. Also, among the
rights of witnesses there is no provision for the
application of motions, which will be discussed in detail
in the following paragraphs.
Thus, we believe that the suspect, accused, victim,
their legal representatives and defenders, witnesses
and other participants in criminal proceedings, whose
rights and interests are affected, have the right to file
motions in order to establish the circumstances
relevant to the criminal case.
As for the persons responsible for authorizing
applications, there are no particular differences in this
matter, since the officials in charge of criminal
proceedings have the right to consider and authorize
them. Consequently, petitions are submitted to
persons conducting initial inquiries, investigators,
heads of investigative departments and their deputies,
heads of initial inquiry units and their deputies,
procurators and the court.
The inclusion of the court in this list of persons can be
justified by the fact that motions are filed not only at
the pre-trial stage of criminal proceedings.
It should be noted that the heads of the investigation
department and their deputies, as well as the heads of
the inquiry unit and their deputies, may consider
petitions if they are conducting a preliminary
investigation or inquiry, while exercising the powers of
an investigator and an inquirer, respectively.
The persons who have the right to appeal against
decisions and actions (or inaction) of the person
conducting the initial inquiry, the investigator, the
head of the investigation department and his or her
deputy, the head of the inquiry unit and his or her
deputy, the procurator and the court are participants
in criminal proceedings and other persons to the
extent that the decisions and actions of officials affect
their rights and interests.
Appeal in the courts provides for the filing of a
complaint against determinations on the application of
sanctions at the pre-trial stage of criminal proceedings,
while at the judicial stage there are already such
institutions of review of the court verdict as appeal,
cassation and revision.
5. The reasonableness of the stated motions and
complaints plays an important role in their timely and
correct resolution. Despite the fact that the burden of
proof lies with the state authorities responsible for
conducting pre-trial and trial proceedings in criminal
cases, the person filing a motion or complaint must
motivate the need to accept their claims. The reason
for this is that motivated demands and statements
help the judicial authorities and the investigation to
understand the essence of claims, demands or
complaints from the applicant. A clear and complete
motivation makes it easier to understand the subject
matter of the case and facilitates effective
investigation.
In other words, if a person filing a petition or complaint
does not justify and specify his/her claims, the inquirer,
investigator, prosecutor may not pay attention to the
reason that gave rise to the petitions. It is necessary to
take into account the time limitation and the heavy
workload on inquirers and investigators, as a result of
which such mistakes may be made.
In turn, if the person filing the petition gives the
reasons for the petition, it will not take long to resolve
the issue.
A detailed statement of reasons helps to identify the
key facts and circumstances surrounding the case. This
is important to more accurately determine what
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actions or events formed the basis for the claims or
complaint being made.
The petition should clearly state the claims and the
reasons for them.
Complaints
must
contain
a
specific
ruling
(determination) or action (inaction) of officials
responsible for the inquiry or preliminary investigation,
which is subject to appeal, and must specify the
requirements and grounds on which the person filing
the complaint considers them unlawful.
6. The tendency to adopt reasoned rulings and
determinations regarding petitions and complaints can
be observed in some foreign countries where this
process is regulated. For example, according to article
121 and article 122 of the Criminal Procedure Code of the
Republic of Azerbaijan, a ruling on a petition or request
must be reasoned and contain an assessment of the
applicant's arguments. Petitions and requests aimed at
a comprehensive, complete and objective clarification
of all circumstances related to criminal prosecution
within the framework of due process and at restoring
the violated rights and legitimate interests of
participants in criminal proceedings and other persons
involved in criminal proceedings may not be rejected.
The div conducting the criminal proceedings shall
take a reasoned decision on the arguments of the
complaint and notify the complainant in writing.
Also, in our opinion, disciplinary responsibility should
be provided for making an unreasonable decision on
the results of consideration of petitions and
complaints filed. However, this process should be
regulated by interdepartmental acts of state bodies
that carry out inquiry and preliminary investigation.
Disciplinary responsibility for unmotivated decision of
officials who conduct criminal proceedings will ensure
that the institution of petitions and complaints will be
effective. In practice, inquirers, investigators and other
persons responsible for criminal proceedings often do
not pay sufficient attention to motions and deny them
without due consideration. In this way, they ensure
that the defense lawyers stop filing motions and
complaints. There is no other measure to influence
these officials, and disciplinary liability should be
envisaged.
The rejection of a petition or other application of the
defense counsel in the procedural order is allowed only
on the basis of a reasoned decision of the official
conducting
the
pre-investigative
inspection,
investigator, investigator or prosecutor.
Thus, the study of scientific materials and practice of
foreign countries shows the introduction of the
mechanism of adoption of a motivated ruling
(determination) on the results of motions and
complaints in criminal proceedings.
7. According to Articles 375, 376 and 377 of the CPC
RUz, the investigator presents the materials of the
criminal case to the accused and his defense counsel
for familiarization after the end of the investigation.
Also, Article 377 of the CPC RUz sets out the procedure
for the application and resolution of motions after
familiarization with the materials of the criminal case.
In accordance with paragraphs 2 and 3 of Article 377 of
the CPC RUz, at the request of the parties, they may be
given time within three days to prepare and file a
motion. The investigator issues a ruling on the full or
partial rejection of the petition and notifies the person
who filed the petition no later than three days from the
date of the petition.
In this case, there is a problem, which is expressed in
the fact that investigators, as a rule, in practice, refuse
to satisfy motions after familiarization with the
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materials of the criminal case, as the terms of the
preliminary investigation is over, which shows the
ineffectiveness of this mechanism.
If the investigator has no time left to carry out
additional
investigative
actions
and
after
familiarization of the accused and his defense counsel
with the materials of the criminal case, these persons
present petitions for the implementation of
investigative actions, the investigator will be forced to
refuse to satisfy these petitions. This problem is
widespread among practitioners.
Article 377 of the Code of Criminal Procedure
guarantees the right of the defense counsel to file a
motion for additional investigative actions after the
criminal case is concluded, but in 99% of cases the
motion is unreasonably rejected by the investigator.
Consequently, during the preliminary investigation,
almost all motions of the defense counsel remain
unsatisfied, insufficient attention is paid to the motives
of the defense, and the right to defense is exercised
formally.
It should be noted that in some criminal cases, certain
investigative actions are required by law. For example,
according to the Decision of the Plenum of the
Su
preme Court of the Republic of Uzbekistan “On
judicial practice in criminal cases involving illicit
trafficking in narcotic drugs, their analogues and
psychotropic substances”, to clarify that the conduct
of forensic chemical examination in cases of crimes
involving illicit trafficking in narcotic drugs, their
analogues and psychotropic substances is one of the
mandatory conditions for proving guilt.
Also, according to the PPVS “On judicial practice in
cases of premeditated murder”, if there are doubts
about the mental completeness of the accused or
defendant, an outpatient or inpatient forensic
psychiatric examination should be conducted.
Moreover, in accordance with the PPVS “On judicial
practice in cases of rape and satisfaction of sexual need
in an unnat
ural form”, if there is evidence of the use by
the perpetrator of narcotic drugs, their analogues,
psychotropic, potent, poisonous or other substances
affecting the intellectual and volitional activity of a
person, it is necessary to establish their properties and
the degree of their impact on the human div by
appointing an expert examination, interrogation of
specialists. If according to the results of the expertise
it will be established that the guilty person used means
or substances, for the manufacture, processing,
acquisition, storage, transportation, forwarding or sale
of which criminal liability is established, his actions are
subject to qualification according to the aggregate of
articles of the Criminal Code, providing liability for the
specified crimes, and the corresponding part of article
118 or 119 of the Criminal Code .
CONCLUSION
We have considered only a certain number of moments
when the legislator requires the appointment of
appropriate
expertise.
However,
in
practice,
investigators may make mistakes or assume that the
appointment of expertise is not necessary. In such
cases, the filing of petitions for expert examinations
must be satisfied, as this requirement is regulated by
the legislator.
Despite this, when filing motions to conduct an expert
examination after familiarization with the materials of
the criminal case, investigators often do not have
sufficient time to appoint and wait for the results of the
expert examination, so we believe that this issue
should be regulated. Namely, in those cases when
certain investigative actions are mandatory, but the
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investigator made a mistake not to conduct it. Further,
the defense counsel applies for conducting this
investigative action, which is reasonable, after
familiarization with the materials of the criminal case.
However, due to the fact that the terms of the
preliminary investigation or inquiry are expiring, the
investigator and the inquirer are forced to refuse to
satisfy these requests. As a result, the investigation is
not conducted with the completeness required by the
legislator.
In order to resolve this issue, it is necessary to provide
for a gap of at least 15 days between the familiarization
by the investigator of the materials of the criminal case
file of the accused and his defense counsel, which will
allow, if necessary, to carry out additional investigative
actions at the request of the defense counsel.
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