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PUBLISHED DATE: - 23-10-2024
DOI: -
https://doi.org/10.37547/tajpslc/Volume06Issue10-08
PAGE NO.: - 53-58
PROSPECTS OF CRIMINAL PROCEDURAL
REGULATION OF A CRIMINALIST
PROSECUTOR’S ACTIVITY
Rajabov Bekhzod Khalimovich
Senior teacher of the Law enforcement academy, Independent researcher of
the Tashkent state university of law, Uzbekistan
INTRODUCTION
At present the causes that lead crimes not to be
exposed are observed by the fact that the
investigative activities are not organized
competently
and
correctly,
that
young
investigators do not have sufficient experience in
the investigative activities, the powers, duties and
functions of the responsible person who can teach
the secrets of the investigation are not clearly
defined, in particular, the clear rights and
obligations of criminal prosecutors, who are
entrusted with the task of ensuring the quality
investigation of criminal cases related to the
investigation of the prosecutor’s office, are not
defined in the criminal-procedural legislation.
When analyzing some statistics on undisclosed
crimes, 104,096 crimes were taken into account in
our country during 12 months of 2023, with 290
crimes per 100,000 inhabitants. (71% or 74,202 of
the crimes taken into account were committed
precisely in 12 months of 2023) 28% (29,145) of
the committed crimes was serious and 4% (4,318)
was extreme [1].
The number of undisclosed crimes on a Republican
scale is 21.5 percent or 12.774, of which 5.624 are
serious according to the severity, 474 counts of
aggravated assault.
When undisclosed crimes are analyzed according
to the types, 10 of them constitute murder, 20
constitute serious bodily harm, 8 constitute
violence, 5,792 burglary, 10 robbery, 5 brigandage,
3,185 fraud, 18 extortion, 4 fatal traffic accidents,
35 hooliganism, 6 hijacking crimes.
450 missing people (71.3 percent) were found as a
result of the rapid-search and investigative actions
RESEARCH ARTICLE
Open Access
Abstract
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carried out.
The search collection volumes, which were kept
against 44 of the missing (7%), were expired, as
well as being terminated based on the court’s
decision to find the person dead.
When analyzing statistics on the activity of
detecting missing individuals in 2019-2023, in
2019, 335 of the 1.129 search published
individuals (29.70%), in 2020, 436 of the 966
search published individuals (45.10 %), 434 of the
776 search published people in 2021 (55.90%),
and 656 search published individuals in 2022 386
(58.80%), and 450 (71.31%) of the 631 search
published individuals were found in 2023.
Additionally, 99 (15 of them were listed in 2023) of
the unrecognized corpses, 14 (14.1 percent) were
identified, while the collected volumes kept against
18 corpses (18.1 percent) were terminated due to
expiration [1].
From the above statistics, we believe that if the
prosecutor-criminalists for unrepentant crimes
had directly been involved in the pre-investigation
examination, inquiry, preliminary investigation, its
procedural powers regarding the correct
organization of investigative activities would have
been strengthened by legislation, such figures
would be relatively low, and the quality of the
investigation would be subject to change for the
better.
There is controversy among most scholars over the
prosecutorial-criminalist procedural and non-
procedural functional powers.
DISCUSSION
On the occasion of the 43rd anniversary of the
establishment of the Institute of Procurators-
criminalists, the General Prosecutor’s Office of the
Russian Federation at the “Institute for advanced
training of executive
personnel” held in 1997 with
the participation of Procurators-criminalists,
Deputy Prosecutor General of the Russian
Federation M. Kayshev mentioned that the
prosecutor-criminalists, who had been active since
1954, should have had independent procedural
status and procedural powers [2. P.51].
Uzbek scientist I.Astanov proposed that the
Criminal-procedural Code of the Republic of
Uzbekistan should include norms that provide for
the establishment of the legal status, the clear
regulation of procedural rights and obligations of
the prosecutor-criminalists [3].
R.Abudllaev, on the other hand, suggested that the
“investigator
-
criminalist” Institute should be
included in the current CPC, because of the need to
inspect the scene of the incident, carry out other
types of Investigation and procedural actions. At
the same time, the Criminal-procedural Code noted
that the rights and obligations of the investigator-
criminalist should also be determined separately
[4. P.19].
Furthermore, A. Imamnazarov’s [5. P.10] reviews
on improving the investigative action, L. Barakaev’s
[6. P.9] viewpoints in his research work on the
criminalistic and procedural aspects of inspection
as a way of collecting evidence, mentioned that a
prosecutor-criminalist should have a separate
procedural position as the head of a structured
operational-investigative
group,
when
investigating serious and extreme crimes, as a
result of the research work, the position of senior
prosecutor-criminalist was introduced in the
General prosecutor’s office to ca
rry out this
activity.
Russian legal scholar A.V.Gorovasky believes that
the concept of the development of the Institute of
Procurator-criminalists is expressed as follows:
The prosecutor-criminalist is an analyst who
correctly directs the opening and investigation of
an extremely serious crime in a difficult situation, a
specialist who is able to organize the effective use
of the investigative bodies, experts and public
opportunities to identify, expose crimes and
prevent a crime in a particular case, a highly
qualified executive who knows how to carry out
preliminary research for, embodied as an organizer
in achieving truth and justice in the opening and
investigation of a particular crime [7].
A.V.Gorovasky promotes the increase in the status
of a prosecutor-criminalist, the granting of
criminal-procedural powers to him in order to
implement the above concept.
Russian criminalist scholar A.Gurin [8] identifies
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the procurator-criminalist as a participant in a
criminal process that helps analytically and
methodically in the investigation of serious and
extreme crimes, rather than a supervising
prosecutor in the procedural stage. The scientist
also distinguishes the different characteristics of
the prosecutor-criminalist from the prosecutor
overseeing the inquiry and investigation by the fact
that he came to the scene of the incident, actively
participated in the collection and examination of
evidence.
The scientist recognizes that the prosecutor-
criminalist is not a classic-looking supervisory
prosecutor, but a participant in the investigation,
he can only participate in investigative actions
based on the assignment of a high-ranking
prosecutor or his deputy, it is impossible to
conduct investigative actions in an independent
criminal case on his own initiative.
Russian
scientists
A.I.Dworkin,
R.M.Safin,
Yu.Lekanov, A.Korotkovs stated that the
prosecutor-criminalist is not among those subjects
who have the authority to conduct independent
investigative actions [9. P.51].
During the activities of prosecutor criminalists in
the Russian Federation, their procedural activities
were controlled on the regulation “On prosecutor
-
criminalists” of General prosecutor in the Russian
Federation in January 23, 1997. According to
Paragraph 1 of the regulation, in the criminalistic
sections of the prosecutor’s Office of the Russian
Federation, prosecutor-criminalists are provided
for a direct participation in conducting the
investigation in every possible way, fully and
objectively, investigating and exposing serious and
extremely
serious
criminal
cases
under
investigation by the prosecutor’s office.
Russian scientist A. Gurin expressed the opinion
that the norms governing the participation of the
prosecutor-criminalist in investigative actions
should be strengthened in legislation, arguing that
his authority in participating in the investigation
should be singled out separately.
It is known that in Article 1 of the CPC of the
Republic of Uzbekistan, on the territory of the
Republic of Uzbekistan, the procedure for
conducting criminal proceedings is regulated by
the Criminal-procedural Code.
The established procedure for conducting criminal
cases in the criminal code is mandatory for all
courts, prosecutors, investigative, investigative
bodies, lawyers, as well as citizens [10].
Therefore, the Criminal-procedural Code records
the only procedures for the conduct of criminal
cases, only the requirements established in this
code are equally mandatory for all.
The analysis carried out shows that the law of the
prosecutor’s office does no
t specifically regulate
the legal status of the prosecutor-criminalist in the
Criminal Procedure Code of the Republic of
Uzbekistan, the powers associated with his
participation in the investigation of criminal cases.
In our opinion, the legal status of the prosecutor-
criminalist in the current СPC, the fact that his
procedural powers are not established, creates a
number of problems regarding the participation of
the prosecutor-criminalist in the pre-investigation
examination, inquiry, preliminary investigation
and limits his participation.
A
prosecutor-criminalist
may
participate
simultaneously as both an expert and the head of
an investigative team when he or she is in the area
of a serious and acute crime incident.
But, as an official who can participate in
investigative actions, he cannot participate
personally.
If a prosecutor-criminalist participates as a
specialist, he takes part in inspecting the scene of
the incident, signing a statement and drawing a
scheme of the scene of the incident, strictly
observing the requirements of the CPC for the
identification, retrieval and recording of evidence.
Capturing the view of the incident collects evidence
related to the case by using the necessary scientific
and technical means.
The prosecutor-criminalist can also take part in
some procedural actions and perform it directly on
his own, in order to conduct preliminary research
on the traces left from the person who committed
the crime in the existing evidence at the place of the
incident.
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In our opinion, it is difficult to say that the
arguments
that
the
prosecutor-criminalist
collected with the result of the implementation of
such procedural actions are fully consistent with
the requirements of Article 95 of the CPC.
Because, when evaluating each argument, job
involvement, acceptability and reliability are
evaluated in terms of adequacy to solve the case.
According to Part 3 of Article 95 of the CPC of the
Republic of Uzbekistan, the evidence is collected in
accordance with the established procedure and it is
noted that they will be recognized as acceptable if
they comply with the conditions provided for in
articles 90, 92-94 of the Code [10].
RESULTS
The procedural status of the prosecutor-criminalist
is defined in the General Prosecutor’s Order.
However, his powers are not legally regulated in
the
Criminal-procedural
Code.
Therefore,
according to Article 951 paragraph 4 of the CPC of
the Republic of Uzbekistan the procedural actions
performed in practice by the prosecutor-
criminalist will cause the recognition of the
procedural action in a criminal case as evidence
obtained by a person who does not have the right
to carry out this criminal proceedings.
Consequently, statements made during the judicial
stage as a result of the participation of the
prosecutor-criminalist in the procedural actions
may lead to the fact that the evidence obtained is
subsequently found to be inappropriate evidence.
The participation of the prosecutor-criminalist in
the investigation of a criminal case leads to a
controversial question over the legality.
It is proposed to include norms of the following
content in the legislation to ensure that in order to
ensure that these problematic issues are resolved,
first of all, the inclusion of the legal status of the
prosecutor-criminalist in the CPC, based on the fact
that he is a participant in the proof process, it is
necessary to clearly define the scope of the
procedural and other actions that he performs
their evidence, collected as a result of investigative
actions carried out personally by the prosecutor-
criminalist, will be recognized by the court as
acceptable evidence in the future.
In our opinion, the rules on the activities of
prosecutor-criminalists should also be clearly
defined in the law of the Republic of Uzbekistan “On
the prosecutor’s office” and in the Criminal
-
procedural Code of the Republic of Uzbekistan.
Chapter 1 of the research work provided an
author’s definition for a prosecutor
-criminalist.
Together with this, we consider that the procedural
status of the prosecutor-criminalist should also be
determined separately in the law.
In the future, it is proposed to fill in Part 7 of Article
56 of the law of the Republic of Uzbekistan “On the
prosecutor’s office” as follows and establish a clear
legal definition of the prosecutor-criminalist with
the new Article 341 of the Criminal-procedural
Code.
CONCLUSION
This definition should be strengthened as follows:
“the prosecutor
-criminalist
–
takes part in the
investigation of crimes using the powers
established in the Criminal-procedural Code,
carries out analytical and organizational activities
related to the use of modern technical means and
the necessary special knowledge opportunities”.
It is also appropriate to include some of the
procedural powers of the prosecutor-criminalist in
the current CPC:
In the current CPC, the new article 34 is called the
“powers of the prosecutor
-
criminalist” and it is
proposed to show that it should have the following
powers.
The prosecutor-criminalist has the following
powers:
–
In order to conduct pre- investigation
examination,
inspection
and
preliminary
investigative action, it is necessary to request
documents, materials and other information about
the criminal cases under investigation, crimes
committed, inquiry, preliminary investigation
process and identification of persons who
committed the crime bodies from public
authorities, pre-investigation examination, inquiry
and preliminary investigation;
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–
to make a substantiated proposal to a high-
ranking prosecutor on the cancellation of illegal
and unreasonable decisions of the authority of pre-
investigation examination bodies, interrogator and
investigators;
–
giving written instructions to the investigative
div on the investigation of crimes, the
implementation of certain investigative actions
and the search for persons who committed the
crime;
–
to hand over the execution of decisions to the
inspection bodies on the capture, retrieval,
imprisonment,
search,
seizure,
search
announcement,
implementation
of
other
procedural actions of persons who committed
crimes, as well as conducting operational-search
activities, taking the necessary measures to open
crimes and issuing written instructions to the
investigators of the prosecutor’s office on the
identification of the persons who committed them
in the relevant cases;
–
directly participate in the preliminary
investigation process and, if necessary, to
implement in-person investigative actions or full
investigation;
–
if the person or investigator conducting the
preliminary investigation has allowed a violation of
the law during the investigation of the case, the
high-ranking prosecutor is allowed to make a
reasoned proposal to exclude the inquiry and the
continuation of the preliminary investigation;
–
to make a proposal to a high-ranking prosecutor
on the investigation of decisions on suspension or
termination of criminal proceedings and the
cancellation of illegal decisions;
–
implementation of other powers provided for by
criminal-procedural legislation.
In addition, the fact that the prosecutor-criminalist
is directly involved in organizing the investigation,
conducting it, manifests itself as a subject of proof
in criminal proceedings. This leads him to further
expand the scope of subjects to prove it in Article
86 of the CPC.
Therefore, it is proposed to state Part 1 of Article
86 of the current CPC in the following edition:
“The proof is carried out by the interrogator,
investigator, prosecutor, prosecutor-criminalist
and the court”
In order to ensure the qualitative conduct of the
investigative action, to determine the criminalistic
description of the crime, to collect and obtain
evidence, to ensure the participation of the
prosecutor-criminalist in the investigation, it is
recommended to introduce the following norms
into the СPC.
It is proposed to supplement Article 91 of the
current CPC after Part 2 with the following
sentences: “It should be carried out with the
participation of a prosecutor-criminalist to inspect
the scene of a serious crime, appoint an
examination and other examination, conduct
interrogation, face-up, seizure, search, conduct an
investigative experiment, conduct operational-
search activities”
The introduction of such a proposal will serve to
expose the crime, identifying all the criminalistic
signs of the person who committed the crime in the
future.
The prosecutor-criminalist works with the
investigator in the scene indicating that a serious
crime has been committed, carefully examining the
scene to help determine the characteristic of the
crime committed by the perpetrator.
When drawing up an algorithm of actions that
cannot be delayed, the role of the prosecutor-
criminalist who provides practical assistance in
indicating the direction of surveying the place of
occurrence of an event is believed essential.
Therefore, it is proposed to supplement Part 2 and
3 of Article 354 of the CPC with the following
content: “...A prosecutor
-criminalist will be
involved in the investigation team, which is drawn
up in very complex or extremely relevant, acute
criminal cases, on the written assignment of a high-
ranking prosecutor. In this case, the prosecutor-
criminalist directly uses the powers of the head of
the inves
tigative group.”
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