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SOME ASPECTS IN THE APPLICATION OF CURRENT PRECAUTIONS
Fayyoza Qambarova
Judge of the Criminal Court of Kashkadarya Regional Court
https://doi.org/10.5281/zenodo.13364058
Abstract:
In this article, the procedure for applying preventive measure as
existing detention in the criminal process, its specific features, analysis and
existing problems in its application are presented, and relevant
recommendations and proposals for the development of practice in this regard
are formulated.
Key words:
crime, criminal process, precautionary measure,
jail,
serious
crime, proceedings before the court.
In a situation where the protection of human rights and freedoms, which
has become the essence of the literally democratic reforms implemented in new
Uzbekistan, is recognized as the main goal of the life of the state and society, the
use of a preventive measure in the form of imprisonment, that is, a certain in a
sense, the issues related to the restriction of the freedom of the citizen attract
the attention of legal researchers and experts in this field more than ever. There
are several reasons and factors for this:
First of all,
today "making the principles of justice and the rule of law the
most basic and necessary condition for development"[1], as well as "the rule of
law and constitutional legitimacy" defined as the 14th goal in the "Development
Strategy of New Uzbekistan for 2022-2026" provision and determination of
human dignity as the main criteria of this process"[2] should not be violated
when the legal requirements for the application of a preventive measure in the
form of imprisonment become an urgent issue;
secondly,
the legal guarantee of personal privacy in international law is
defined as one of the most important factors for ensuring the protection of
human rights;
thirdly,
in the course of conducting a criminal case, the citizen will be
prevented from being subjected to illegal criminal prosecution and illegal
actions by investigative bodies.
The legislation of Uzbekistan defines the procedure for applying
preventive measures in the form of imprisonment, and according to Article 27 of
the Constitution, "arrest and detention are allowed only by court decision. A
person cannot be detained for more than forty-eight hours without a court
order.”[3] This constitutional provision guarantees that a suspect accused of
committing a crime is under the protection of the court at the initial stage of the
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criminal case. And this progressive, humane norm is fully consistent with the
universally recognized principles of international law.
Article 9 of the International Covenant on Civil and Political Rights, which
has been ratified by many countries of the world and is recognized as an
extremely important document in international law, states: "No one shall be
arbitrarily arrested or detained it's not. "No one can be deprived of liberty on
grounds and procedures other than those established by law", "Any person
arrested or detained on criminal charges shall immediately be brought before a
judge or other official authorized by law to exercise judicial power." important
international norms such as the right to be brought to court and be released
within a reasonable period of time"[4].
The practice of allowing detention by judicial authorities is called the
institution of "habeas corpus" in international law (lat. habeas corpus, literally -
"bring the div to court", meaning - "bring the arrested person to court in
person") considered by legal scholars as the most important means of protecting
individual freedom and integrity.
"Precautionary detention is carried out in cases of intentional crimes
punishable by imprisonment for more than three years in the Criminal Code and
crimes committed as a result of carelessness, for which the Criminal Code
provides a punishment in the form of imprisonment for a period of more than
five years. is used according to" [5]. (Article 242 of the Criminal Code)
Types of precautionary measures in the legislation of our country (receipt
of good behavior; personal guarantee, public association or group guarantee;
bail; house arrest; imprisonment; transfer of minors for observation; behavior of
a military serviceman -command surveillance over the character[5]) is defined,
and among them, the precautionary measure in the form of imprisonment is the
most serious measure, which causes severe consequences, and is characterized
by a direct impact on a person's personal life. Naturally, the freedom of the
person to whom this precautionary measure is applied is significantly limited.
"The precautionary measure is to prevent the accused, the defendant from
evading the inquiry, preliminary investigation and court; preventing his further
criminal activity; to prevent his legitimate attempts to find out the truth about
the case; used to ensure the execution of the sentence" [5]. (Article 236 of the
Criminal Code)
" X abeas corpus" institute has been used in our country since 2008.
According to the Law O'RQ-100 of July 11, 2007 "On Amendments and Additions
to Certain Legislative Documents of the Republic of Uzbekistan in Connection
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with the Transfer of the Right to Sanction Detention to the Courts", "No one
cannot be arrested or kept in prison without a court order" [6].
The request of the prosecutor to apply a precautionary measure in the
form of detention against the accused has the appearance of a "template", the
content of all of them is the same: Article 236 of the Criminal Procedure Code of
the Republic of Uzbekistan has been amended, "the accused's evasion of inquiry,
investigation and trial" , in order not to allow him to continue his criminal
activities and to prevent him from doing actions that hinder the establishment of
the truth in the case" he is requested to be detained. The judges, while satisfying
the request, are copying it to the point in their rulings" [7].
According to the legal scientist D. Suyunova, who has conducted many
scientific researches in this regard, "According to the amendments made to the
Criminal Procedure Code of the Republic of Uzbekistan, starting from 2008, the
courts were given the right to sanction detention, which means the protection of
human rights became one of the most important factors of provision. From that
moment on, the procedural mechanism of applying this precautionary measure
has changed radically in favor of citizens. Now, in order to choose a preventive
measure in the form of detention, the prosecutor must apply to the court with a
petition within the time limits set by law, and the court, in turn, approves or
rejects the petition submitted by the prosecutor. solves the issue" [8.
In our opinion, it is appropriate to focus on the following issues in order to
further increase the efficiency of the use of preventive measures in the form of
imprisonment by judges:
- it is necessary to define the obligation of preliminary investigation and
prosecutor's offices to include their well-grounded conclusions proving that it is
not possible to apply a lighter preventive measure in the petition sent to the
court for the application of a preventive measure in the form of imprisonment.
For this, it is proposed to supplement Article 236 of the Criminal Procedure
Code of the Republic of Uzbekistan with the following fourth paragraph:
preliminary investigation and prosecution bodies in the petition sent to the
court for the application of a precautionary measure in the form of
imprisonment, it is necessary to cite acceptable evidence proving the necessity
of applying the preventive measure of imprisonment.
List Of References:
1.
Decree of the President of the Republic of Uzbekistan "On the
Development Strategy of New Uzbekistan for 2022-2026" No. PF-60, dated
January 28, 2022, https://lex.uz/uz/ docs/5841063.
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2.
"Development
strategy
of
New
Uzbekistan
for
2022-2026.
https://lex.uz/uz/docs/5841063.
3.
Constitution
of
the
Republic
of
Uzbekistan,
https://www.lex.uz/acts/6445145#6445506.
4.
International Covenant on Civil and Political Rights, Unofficial translation,
https://lex.uz/docs/2640479.
5.
Criminal
Procedure
Code
of
the
Republic
of
Uzbekistan,
https://www.lex.uz/acts/111460.
6.
Criminal
Procedure
Code
of
the
Republic
of
Uzbekistan,
https://www.lex.uz/acts/111460.
7.
Criminal
Procedure
Code
of
the
Republic
of
Uzbekistan,
https://www.lex.uz/acts/111460.
8.
The law "On amendments and additions to certain legal documents of the
Republic of Uzbekistan in connection with the transfer of the right to sanction
detention to the courts", https://lex.uz/docs/1322717.
9.
B.Salomov.,
"Anything
but
prison
is
void
(is
it?)".,
https://advokatnews.uz/khabar/1925.html.
10.
D. Suyunova., "Detention" precautionary measure: who suffers from
situations not regulated by law?, https://advokatnews.uz/khabar/1950.html.
