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английского языка. М., 1966, 300 с
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Alisher Shamsiev, Applicant of the Academy of the Prosecutor General of
the Republic of Uzbekistan
THE NATURE AND DIRECTIONS OF PROSECUTORIAL SUPERVISION OF
COMPLIANCE WITH THE LAW BY PRELIMINARY INVESTIGATION BODIES
A. Shamsiev
Abstract: The article reveals the essence and features of the prosecutor's
supervision over the observance of laws in pre-trial criminal proceedings,
considered the forms and features of the oversight of evidence, involvement
of a person in a criminal case as a suspect or accused, and at the end of the
preliminary investigation.
Keywords: prosecutorial supervision, pre-trial proceedings, compliance
with laws, forms and features of prosecutorial supervision, engaging a
person to participate in a criminal case as a suspect or accused, the end of
the preliminary investigation.
The statement of the problem of building a democratic law-governed state
and a strong civil society actualizes the increasing requirements for compliance
with the law in the activities of law enforcement agencies. Since the rule of law
provides for the protection and protection of the rights and interests of a
person, society, and the state from crimes by creating conditions for their
disclosure, exposing and convicting the guilty with the establishment of
guarantees for the realization of individual rights.
International standards for ensuring human rights and freedoms,
enshrined in the World Declaration of Human Rights and the International
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46
Covenant on Civil and Political Rights [1], are reflected in the Constitution of the
Republic of Uzbekistan [2], according to which the observance of such rights
and freedoms as - personal integrity, inviolability is guaranteed home, privacy
of correspondence and correspondence, etc.
It should be noted that the Constitution of the Republic of Uzbekistan
proclaims that “... the highest value is a person, his life, freedom, honor, dignity
and other inalienable rights. Democratic rights and freedoms are protected by
the Constitution and laws ”[2]. The approach to the individual as a social value
protected at the highest level, reflected in the Constitution, required the
improvement of the criminal procedure legislation and the practice of its
application, aimed at preventing various violations in the criminal procedure
sphere, which was reflected in the Strategy for Further Development Republic
of Uzbekistan [3]. Among the main directions in the Action Strategy, it is
pointed out that it is necessary to solve the problems of ensuring detailed
regulation in criminal procedure legislation of legal relations in criminal
proceedings, as well as accurate and uniform implementation of legislation.
Moreover, compliance with the law is ensured only with the availability of legal
instruments and criminal procedural institutions that determine the status and
relations between participants in the criminal process, which directly affects
the protection of the rights and legitimate interests of citizens.
A study of international experience has shown that in developed countries,
special attention is paid to the formation and legal regulation of an effective
mechanism for ensuring compliance with human rights at the stage of pre-trial
criminal proceedings. In this context, a special role is given to the prosecutor's
oversight of the implementation of the requirements of the law by bodies
involved in the fight against crime.
In accordance with Art. 118 of the Constitution of the Republic of
Uzbekistan, the supervision of the accurate and uniform implementation of
laws on the territory of our country is carried out by the Prosecutor General of
the Republic of Uzbekistan and prosecutors subordinate to it [2]. Thus,
prosecutorial oversight is an activity enshrined at the level of the Constitution
aimed at ensuring accurate and uniform enforcement of laws by all state and
non-state bodies, legal entities and individuals throughout the country. It
should be noted that the prosecutor’s office exercises its authority
independently of any state div, public association and officials, subject only to
the law. In essence, prosecutorial supervision as an institution of responding to
any violations of the law performs the tasks of ensuring the rights and freedoms
of citizens, protecting public and state interests and is carried out in the manner
and form established by law [4. c. 314-315].
Analysis of the legal framework and practice of organizing prosecutorial
supervision of the activities of pre-trial proceedings abroad [5. c.14; 6. c.22; 7.
c.19] and our country [8. p.33; 9. c.10] showed the existence of complex
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47
problems related to the implementation of the functions of pre-investigation
verification, inquiry and preliminary investigation in criminal cases, as well as
supervision over the implementation of laws by bodies of inquiry and
preliminary investigation. This shows that the functions, powers of the
prosecutor at the pre-trial stage and features of the prosecutor's supervision of
the activities of the preliminary investigation bodies are constantly in the focus
of attention of scientists and practitioners.
In accordance with Art. 382 of the Code of Criminal Procedure of the
Republic of Uzbekistan (hereinafter referred to as the Code of Criminal
Procedure), the prosecutor is responsible for the supervision of uniform and
accurate compliance with laws in criminal investigations. In the legal
References:, the methodology of prosecutorial supervision is defined as a set, a
set of methods, i.e. ways, means, methods of using legal forms of exercising the
powers of prosecutors in order to prevent, identify, eliminate violations of the
law, causes and conditions that contribute to them [9. p.13-15; 10. c.29-30].
In our opinion, the features of prosecutorial supervision are as follows:
carried out only by authorized public prosecutors;
directions and branches of activity of prosecutorial supervision are
determined by the Law of the Republic of Uzbekistan “On the Prosecutor's
Office” and other regulatory legal acts;
prosecutorial supervision is carried out by monitoring the implementation
of normative legal acts only within the limits of areas and branches defined by
him;
Objects of supervision can be the activities of both state bodies responsible
for criminal proceedings, as well as legal entities and individuals involved in
criminal proceedings;
prosecutorial supervision is carried out in order to ensure the interests of
the individual, society and the state.
At the same time, in our opinion, when classifying the types and forms of
supervision, it is imperative to take into account the particularities of the
activities of the div carrying out it - the prosecutor's office, the direction and
branch of prosecutorial supervision. According to the norms of the Law of the
Republic of Uzbekistan “On the Prosecutor's Office” (new edition) [12], there
are a number of branches of prosecutorial supervision, and each type of branch
supervision is not only specifically disclosed in the law, but also reflected in the
system of prosecutor’s bodies.
So, according to Part 1 of Art. 4 of the Law "On the Prosecutor's Office" of
the nine main areas of activity of the prosecution authorities, six are related to
the implementation of supervision, and the remaining three cover other areas
of activity.
The main goal of prosecutorial supervision of the execution of laws by the
preliminary investigation authorities is to resolve issues related to the degree
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to which the activities of the preliminary investigation bodies comply with the
requirements of the Criminal Code, the Criminal Procedure Code and other
laws, the objectivity of the investigation, and ensuring the rights and freedoms
of persons involved in the criminal process.
In our opinion, the following should be singled out as forms of supervision
of the preliminary investigation in criminal cases:
familiarization and study of materials of criminal cases;
hearing information from investigators on the progress of criminal
investigations;
personal participation in the preliminary investigation;
consideration and resolution of complaints and applications for decisions
and actions of investigators.
Based on the fact that the investigator, in carrying out their activities,
considers and resolves complaints and allegations of crimes, it is necessary to
pay attention to the subject of prosecutorial supervision of this stage of pre-trial
proceedings. So, the subject of prosecutorial supervision of the implementation
of laws during the pre-investigation check is the monitoring of the exact and
uniform implementation of the norms of the criminal procedure legislation
establishing the procedure for the adoption, registration, verification and
resolution of statements and reports of crimes, as well as the cancellation of
illegal or unreasonable decisions of investigators, issuing decisions to institute
or refuse to institute criminal proceedings in cases of violation of the law.
It should be noted that the supervision of the pre-investigation inspection
of preliminary investigation bodies in accordance with Art. 27 of the Law “On
the Prosecutor's Office”, being an integral part of the subject of supervision of
the enforcement of bodies by the anti-crime authorities, includes the
procedural procedure for examining and resolving allegations and reports of
crimes, conducting an investigation, as well as the legality of decisions made by
the authorities leading the fight against crime. These powers are disclosed by
the two parties to the prosecutor's supervision of the pre-investigation check.
So, the prosecutor oversees: a) the implementation of the requirements of the
law on the adoption, consideration and resolution of applications and reports
of crimes committed or being prepared; b) full and accurate compliance with
the law by the bodies of the preliminary investigation.
The prosecutor, overseeing the decisions made on the results of the pre-
investigation check, carefully checks, examines each material and, if necessary,
cancels the illegal and unreasonable decisions of the investigator, i.e., canceling
the decision to initiate a criminal case, refuses to initiate a case, cancels the
decision on refusal to institute criminal proceedings, initiates criminal
proceedings.
The main activities of the preliminary investigation bodies are carried out
through the implementation of the evidence process. Prosecutorial supervision
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of evidence at the preliminary investigation is carried out in the form of issuing
sanctions for investigative actions, participating in various investigative and
procedural actions in the case, as well as conducting personal investigative
actions.
Prosecutorial supervision over the involvement by the preliminary
investigation authorities of a person in a criminal case as a suspect or accused
consists of ensuring the accurate and correct execution of the requirements of
the legislation provided for when a person is detained or involved in a case as
a suspect or accused (Article 47, 48, 220, 221, 224–227, 359–361 of the CPC)
[13].
At the same time, prosecutorial supervision over the involvement of a
person in a criminal case as a suspect or accused has its own characteristics.
Their presence is primarily characterized by applying to a person involved in a
criminal case as a suspect or accused, giving them appropriate procedural
status, the existence of procedural rights and obligations arising from this, and
the possibility of applying state coercion measures and other legal restrictions
to them .
On the other hand, the legal status of a person is changing: he may be
subject to restrictions of such constitutional rights as personal freedom and
inviolability, the inviolability of his home, the secrecy of telephone
conversations and correspondence. This without fail requires compliance with
the procedural order and legality in the implementation of procedural actions
related to involving a person in the case as a suspect or accused. That is why, at
this stage, the high efficiency of prosecutorial supervision is required, through
which the validity of attracting a person to participate in a criminal case as a
suspect and preventing violations of individual rights is ensured. Prosecutorial
supervision also serves to ensure that the investigator complies with the
grounds and procedure for attracting a person to participate in a criminal case
as an accused, as provided for in the Code of Criminal Procedure.
The issuance of a decision to bring a person to a criminal case as an accused
means the beginning of the process of bringing a person to criminal liability. In
this regard, prosecutorial oversight should be aimed at organizing and ensuring
that conclusions on the existence of a criminal offense and on the commission
of this offense by a given person are based on sufficient evidence substantiating
these findings. In addition, evidence must be collected, verified and evaluated
in accordance with the law. All doubts about the guilt of the person in the case
must be eliminated, i.e. in order to attract a person to participate in a criminal
case, all elements of the corpus delicti must be established as the accused, and
the fact of the commission of the crime by this person must be established by
the evidence gathered in the case.
The main task of prosecutor's supervision over the involvement of a
person in a criminal case as an accused is to ensure that this decision is made
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only after evidence has been gathered confirming the person’s guilty of
committing a crime. When supervising the involvement of a person as an
accused, the prosecutor must be guided by the requirements of Art. 2 of the
CPC, according to which everyone who commits a crime must be punished with
fair punishment and not a single innocent person will be prosecuted and
convicted.
The main task of prosecutor's supervision over the involvement of a
person in a criminal case as an accused is to ensure that this decision is made
only after evidence has been gathered confirming the person’s guilty of
committing a crime. When supervising the involvement of a person as an
accused, the prosecutor must be guided by the requirements of Art. 2 of the
CPC, according to which everyone who commits a crime must be punished with
fair punishment and not a single innocent person will be prosecuted and
convicted.
The prosecutor should focus on ensuring that the preliminary
investigation authorities do not attract a person as an accused in the event of
insufficient collected evidence of a person’s guilt.
A study of the practice of investigating criminal cases showed that
investigators, when deciding on the involvement of a person in the case as an
accused, send a copy to the prosecuting supervisor. It should be noted that the
Code of Criminal Procedure does not contain such a requirement, however, the
existing practice can be adopted as a way to ensure the rights and legitimate
interests of persons involved in the case as an accused, as well as legality in
attracting a person as an accused at the preliminary investigation. The
prosecutor, through the study of the decision on the involvement of a person in
a criminal case as an accused, exercises supervision of the prosecution. Thus,
the prosecutor, as the guardian of the law and responsible for ensuring the
rights of the suspect and the accused, within the limits of his authority, directly
exercises the oversight function specified in the CPC and other regulatory legal
acts for the exact and full compliance with the law by the preliminary
investigation authorities.
Another of the main areas of prosecutorial oversight of the activities of the
preliminary investigation bodies is the organization, monitoring and ensuring
full compliance with the requirements of the procedural legislation at the end
of the preliminary investigation.
In the process of supervising the preliminary investigation, the prosecutor
should pay particular attention to the completeness, comprehensiveness and
objectivity of all evidence collected, which indicate the guilt of the person or
exclude the proceedings, conduct and execution of investigative actions, in
accordance with the requirements of the Criminal Procedure Code, aimed at
checking and evaluating evidence, security the rights and legitimate interests
of the participants in the process, the formulation of the conclusions of the
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51
preliminary investigation. The peculiarities of prosecutorial supervision over
the completion of the preliminary investigation include verification of the
ensuring by the investigator of the rights and legitimate interests of the
participants in the process. So, the prosecutor supervises how the investigator
notifies the participants in the trial about the end of the preliminary
investigation, explains to them their rights at this stage and carries out
familiarization of the case materials with interested parties, draws up an
indictment or other procedural act that marks the end of the preliminary
investigation.
Based on the foregoing, it should be noted that supervision of the activities
of the preliminary investigation bodies is one of the main activities of the
prosecutor's office and is aimed at fulfilling the tasks of ensuring compliance
with the law during the preliminary investigation. The prosecutor is an official
who occupies an important and specific place in the mechanism of public
administration, is responsible for the implementation of one of the main
functions enshrined in the theory of the criminal process - the function of the
prosecution. If the prosecutor in the process of supervising the investigation
finds a wrong, unreasonable or illegal decision of the investigator, he makes a
decision to cancel this procedural act and recognizes the decision of the
investigator as null and void.
As a conclusion, it should be noted that prosecutorial oversight of the
implementation of legislation by the preliminary investigation authorities, as a
sub-sector of oversight of the accurate and uniform application of laws by crime
control authorities, is an activity aimed at ensuring the legality of decisions and
actions of the investigator starting from the stage of consideration and
resolution.
References:
1. Collection of international documents. - T., 2003. - S.7-102
2. The Constitution of the Republic of Uzbekistan. - T., 2018.
3. Decree of the President of the Republic of Uzbekistan “On a strategy
for the further development of the Republic of Uzbekistan” dated February
7, 2017 // Collection of legislation of the Republic of Uzbekistan, 2017, No.
6, Art. 70, No. 20, Article 354.
4. Commentary on the Code of Criminal Procedure of the Republic of
Uzbekistan / Ed. U.T. Tajihanova. - Tashkent, 2000 .-- S. 314-315.
5. Boltoshev E.D. The functions of the prosecutor in the pre-trial stages
of the criminal process: Abstract of thesis. Candidate of Legal Sciences. - M.,
2002 .-- 24 p.
6. Kryukov V.F. The legal status of the prosecutor in criminal
prosecution (pre-trial and trial). Author's abstract Doct. legal science. - M.,
2012 .-- 49 p.
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52
7. Olisov R. Yu. Correlation of procedural independence of the
investigator and prosecutorial supervision in domestic pre-trial
proceedings Abstract. dis. Candidate of Legal Sciences. M., 2006 .-- 21 p.
Alimov F.Kh. Prosecutorial supervision of the preliminary investigation.
Abstract. dis. Candidate of Legal Sciences. –T., 2009. - 21 p.
8. Pulatov B.Kh. Theoretical and practical problems and ways to
improve the legislative regulation of the participation of the prosecutor in
criminal cases in courts: Abstract of thesis. ... doc. legal sciences. - Tashkent,
2003. - 49 s;
9. Bushkovskaya E.N. Supervision of the prosecutor over the procedural
activities of the investigator and the inquirer in pre-trial proceedings.
Abstract. Candidate of Legal Sciences - M., 2011 .-- 22 p.
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and civil rights and freedoms in the course of a preliminary investigation.
dis. Candidate of Legal Sciences. M., 2002 .-- 24 p .;
11. Kryukov V.F. The legal status of the prosecutor in criminal
prosecution (pre-trial and trial). Author's abstract Doct. legal science. - M.,
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12. The Law of the Republic of Uzbekistan “On the Prosecutor's Office”
(new edition) // Collection of legislation of the Republic of Uzbekistan. -
2014. - No. 32. - Art. 395; 2016, No 32 (387).
13. The Code of Criminal Procedure of the Republic of Uzbekistan.
Tashkent. 2020.
Erkin Norbutayev, Independent Applicant of the Academy of the Ministry
of Internal Affairs of the Republic of Uzbekistan
LEGAL BASIS FOR LICENSING IN THE REPUBLIC OF UZBEKISTAN
Erkin Norbutayev
Abstract: The article discusses the legal basis for licensing in the
Republic of Uzbekistan, analyzes the regulatory legal acts, and on the basis
of a study of the opinions of scientists gives recommendations for its
improvement.
Keywords: license, licensing, legal regulation, licensing.
In accordance with the Constitution of the Republic of Uzbekistan, the
Cabinet of Ministers, within the limits of constitutional norms and in
accordance with the legislation in force, issues decisions and orders binding
