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Volume 04 Issue 04-2022
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(ISSN
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Publisher:
The USA Journals
ABSTRACT
The article examines the theoretical and practical aspects of the institute of preliminary hearing in the criminal
procedure of the Republic of Uzbekistan, examines historical types of legal proceedings through the lens of the
institution under consideration, conducts a comparative analysis of the functioning of the preliminary hearing in the
criminal procedure of other countries. In addition, the algorithms of its action and its influence on the implementation
of procedural functions by the participants in the criminal procedure are comprehensively discussed.
KEYWORDS
Ordering the criminal case to trial, issues to be clarified in terms of the case; preliminary hearing; procedural functions
in criminal proceedings.
INTRODUCTION
There have been three models of the stage of ordering
the criminal case to trial throughout the history of
criminal proceedings:
An adversarial-security model (состязательно-
обеспечительная модель), characterized by the
following features: consideration of all issues of
Research Article
THE PRELIMINARY HEARING – THE CENTRAL STAGE OF THE COURT
PROCEEDINGS
Submission Date:
March 30, 2022,
Accepted Date:
April 11, 2022,
Published Date:
April 24, 2022
|
Crossref doi:
https://doi.org/10.37547/tajpslc/Volume04Issue04-04
Rakhmonova Surayyo Makhmudovna
Doctor of Sciences in Law, Associate Professor, Head of the Department of Criminal Law High School of
Judges with the Supreme Judicial Council of the Republic of Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
19
Volume 04 Issue 04-2022
The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
VOLUME
04
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SSUE
04
Pages:
18-25
SJIF
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FACTOR
(2020:
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6.
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OCLC
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1176274523
METADATA
IF
–
7.659
Publisher:
The USA Journals
the stage in the form of a court session; adversarial
proceedings; mandatory participation of the public
prosecutor, the accused, and the defense counsel;
A revision-investigative model (ревизионно-
розыскная модель), characterized by the judge's
appointment of a meeting outside the framework
of the judicial procedure and a non-adversarial
procedure;
A combined model (смешанная модель), which
comprises holding the stage of scheduling a court
session
in
a
combined
form,
consisting
simultaneously of the procedures of the first and
second models.
It should be emphasized that the stage of ordering a
court session in our republic corresponds to the
revision-investigative model, whereas the adversarial-
security model, while the most optimal in the world is
the adversarial-security model, which is expressed in
the form of a preliminary hearing.
What is the purpose of a preliminary hearing? To begin
with, it should be emphasized that the traditional form
of preliminary hearing originated and developed in the
English criminal justice system.
The preliminary hearing of the case is a form of direct
judicial oversight over the compliance of the actions of
the bodies of inquiry and preliminary investigation in
compliance with the requirements of the law at the
stage of preparation for the court session. In this stage,
the main issues of the further development of the
criminal case are resolved through the application of
the principle of adversarial proceedings in order to
achieve the objectives of criminal proceedings.
In fact, determining what should be invested in the
definition of the English concept of “criminal
procedure” - which is part of the state’s response to a
crime and part of the mechanism by which substantive
criminal law is administered to people [1, p.21] - is
difficult.
Interestingly, the accused's innocence is never
established under the English criminal procedure, and
even if he is acquitted, that does not indicate he was
not involved in the crime [2, p.19].
The preliminary hearing can be traced back to the
English criminal process, which served as the
foundation for the entire Anglo-Saxon legal system. In
the Anglo-Saxon process, a preliminary hearing is held,
which is conducted by a magistrate with the
participation of the parties and in an adversarial
manner. Here the prosecutor gives enough evidence in
his opinion, and the defense has the right to scrutinize
and challenge them (subject to cross-examination of
witnesses) as well as present their evidence [3, p.33].
In the English preliminary hearing, the evidence
collected by the prosecution is commonly ‘probed’. At
this point, the defense prefers not to publicize their
own evidence, preferring to save it for the main trial.
This stage cannot be regarded complete even after the
decision to bring the accused to trial. The start of the
trial is preceded by the ‘disclosure of evidence’
method, which means that each of the parties gets
acquainted with the opponent's evidence base by
assembling the materials for ‘their own dossier’ [4,
p.56].
The preliminary examination procedure is used in US
magistrate courts in a similar way. To put it another
way, the American version of preliminary hearings is
fairly similar to the English version, but there are a few
differences. A preliminary hearing is typically utilized in
the United States in situations of serious crimes
(felony) for which arrest is sought. The preliminary
hearing in the United States is structured as follows:
the beginning of the preliminary hearing is the moment
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Volume 04 Issue 04-2022
The American Journal of Political Science Law and Criminology
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2693-0803)
VOLUME
04
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Pages:
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SJIF
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(2020:
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OCLC
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METADATA
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Publisher:
The USA Journals
the relevant judge or other official registers the
indictment document. At the preliminary hearing, the
following issues will be considered: the choice of a
preventive measure (in most cases, such preventive
measures as arrest, bail, and personal guarantee are
used); the possibility of reaching a ‘plea deal’;
resolution of the accused's petitions to call additional
witnesses; and a partial familiarization of the parties
with the evidence they have gathered. The preliminary
hearing outcomes are used to determine whether
adequate grounds have been established for the
matter to be advanced further. If there are sufficient
grounds to hold the accused accountable for a serious
offense, the magistrate (judge) decides to forward the
accusatory document to the court, which will assess
the case on its merits (trial court) [5, p.43].
It is worth noting that in the United States, the
preliminary hearing is the central platform for all
criminal procedures, with 96 percent of all criminal
cases being settled at the preliminary hearing and only
4% of cases reaching the grand jury! Undoubtedly, this
is due to the hyper-enhanced adversarial process of the
US trial, in which the preliminary hearing is used to
"actively dialogue" between the prosecution and
defense positions on the ‘quality’ and ‘procedural
consequences’ of the collected evidence, rather than
to clarify the actual circumstances of the crime event.
It is worth noting that in the German criminal justice
system, the stage of bringing a case to trial has long
been regarded as extremely questionable. It was
liquidated and restored several times. Opponents’
main point is that taking the accused to trial entails
acknowledging the pre-trial consideration of the case
presented against him for committing a crime. To
address this serious accusation, part 1 of 207 of the
Code of Criminal Procedure of the Federal Republic of
Germany, new edition, states that the judgement on
bringing to trial only reflects the prosecution's
admission to consideration in the trial [6, p.9].
However, it is impossible to deny that the choice to
bring the accused to trial will have an impact on the
judge who will hear the case.
It is certainly possible to concentrate on the German
model of prosecution, but it does not fit all of the
criteria for the structure and concept of the national
Criminal Procedure Law. For example, § 202a. of the
Code of Criminal Procedure of Germany provides for
the so-called preliminary discussion. That is, if the court
is willing to open the main court proceedings, it may
discuss the status of the case with the parties involved
to see and if it is thus possible to speed up the
proceedings. The case file contains the major points of
the discussion. In German criminal proceedings, court
agreements can only be reached during the main trial
(see p.257). However, the legislator gives the
participants in the process with the possibility to
interact in order to prepare an agreement at virtually
any level of criminal proceedings [7, p.532] in sections
160b, 202a, 212, and 257b.
The presence of such communication in the German
procedure once again demonstrates logicality and
acceptability of introducing a preliminary hearing into
the Criminal Procedure Legislation of the Republic of
Uzbekistan at the stage of ordering a case to trial.
It should be noted that a comparative analysis of the
legislation of Germany and Uzbekistan in terms of the
stage of bringing to trial revealed a number of similar
features, which can be explained by the importance of
both forms to a single model of judicial functioning,
with the court taking an active role. Nonetheless, the
German methodology of assigning a case to trial is
more reasonable and rational than its counterpart in
our national legislation. As a result, it appears
acceptable to sensibly and optimally incorporate
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foreign experience into the legislation of Uzbekistan,
particularly German law enforcement practice.
The experience of the jurisdictions in the near abroad
is particularly valuable since, like Uzbekistan, they are
all linked by a common historical past and a long-
standing community of political, economic, and social
interests. Although the preliminary hearing procedure
is known by different names in countries such as the
Russian
Federation,
Kazakhstan,
Kyrgyzstan
(preliminary
hearing),
Azerbaijan
(preparatory
hearing), Turkmenistan (preliminary hearing), and
Moldova (preliminary hearing), it is essentially the
same in all of them. That is, the preliminary hearing is
held by the same judge who will later assess the matter
on the merits, rather than by a specialist judge.
The following requirements are necessary general
aspects of this order, according to the practice of the
institute of preliminary hearing in nations with Anglo-
Saxon and continental legal systems, as well as CIS
countries:
1)
A preliminary hearing is an alternate method of
ordering a case for trial that is conducted by
the court in accordance with a certain
procedural order;
2)
The activities of the court are aimed at
resolving the issues on the merits that served
as the basis for holding a preliminary hearing;
3)
The decision to have a preliminary hearing, as
well as the subject and scope of its
proceedings, are initially constrained by law or
the subjective will of the parties;
4)
During the preliminary hearing, the parties may
discuss the sufficiency of the grounds for
considering the case in court, the scope of the
charge, the availability of evidence, and
compliance with the requirements of the law;
5)
The preliminary hearing clarifies whether the
parties' submitted applications and petitions
deserve satisfaction;
6)
The preliminary hearing concludes with the
adoption of a court order - a ruling.
What opportunities and benefits does the preliminary
hearing afford for the parties in the process,
particularly for the accused and the defense as a
whole?
Today, the court, entering the trial process, has in front
of it all the case materials provided by the prosecution.
Unfortunately, save for petitions and complaints that
have passed the preliminary investigation stage, the
defense side is unable to offer anything to the court.
Furthermore, the court first examines the preliminary
investigation materials, forming a general and
particular impression (some propositions) about the
crime event, the defendant, the victim, witnesses,
other circumstances, and evidence in advance. In such
circumstances, the court will find it difficult to retain
total impartiality and open-mindedness when
assessing a criminal case, as the law requires.
The current arrangement, in which the judge decides
on the advancement of the criminal case ‘in the office
form’, without the participation of the parties,
prevents the defense from approaching the court and
presenting its views. That is why it is necessary to
create a special judicial procedure in which, at the
request of the court or the parties, the issue of the
impossibility of conducting a trial and the need to
decide whether to suspend the case, return it to a
previous stage, or even terminate it thoroughly is
discussed.
The defense side, in our opinion, is especially essential
at a preliminary hearing since it provides opposing
parties in an adversarial process, as well as the
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Volume 04 Issue 04-2022
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OCLC
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Publisher:
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opportunity to dispute objective points made by the
accuser or to discredit the prosecution's line in general.
Another significant feature is that, once again, the
defense side is the primary originator of declaring
evidence inadmissible (and therefore, the accused). As
a result, the process is activated, ‘revived’, and the
prosecution is forced to be ‘in tough condition’,
diligently prepare for the process, bringing this stage
out of the shell of empty ‘formalism’ to the level of
procedural ‘reality’.
What obligations and requirements does a preliminary
hearing place on the people in charge of a criminal case
(inquiry officer, investigator, prosecutor)?
The examination of practice reveals that pre-trial
processes are frequently marred by two types of flaws:
a) insufficient preliminary inquiry; and b) severe
violations of criminal procedure law requirements.
The insufficient investigation of the circumstances of
the crime or the inadequacy of the obtained evidence
verifying the commission of the crime by the person
involved as the accused are examples of the first group
shortcomings. The second category covers situations
in which there is sufficient evidence, but substantial
violations of the Code of Criminal Procedure were
committed throughout the collection process (the use
of unacceptable illegal methods in proving or
conducting investigative actions at night).
Unfortunately, the current situation at the preliminary
investigation stage is such that, due to the influence of
certain objective and subjective factors (such as a ‘lack’
of experienced qualified personnel in the investigative
apparatus, particularly in the regional offices; the near
loss
of
the
‘investigative
scientific
school’;
unreasonably large amount of work; there is still the
presence in the minds of investigators of such an old
Soviet stereotype of thinking as “there is a mistake in
the case - the court will correct it”; the tendency is to
chase after ‘figures and reports’ even in matters of the
fate of man; there is a considerable decline in the
quality of the investigation due to a decrease in the
efficacy of prosecution supervision over the inquiry
(because to the load of innumerable responsibilities
and functions of the prosecutor's office).
A preliminary hearing, for example, is one of the best
ways to eliminate such negative practices. Why?
Because the preliminary hearing is the first step in
“sifting through a sieve” criminal cases for quality, it is
here that the defense calls the court's attention to the
investigation’s flaws and begins the ‘cleaning’ of the
accusatory basis of inadmissible and poor-quality
material. As a result, only cases that are ‘ready’ to go to
trial are admitted.
What kind of soil will be prepared by this filter? In the
future, the investigating div, realizing the risk of the
criminal case ‘collapsing’ even during the preliminary
hearing, will be directly ‘interested’ in the quality of the
investigation and will: refrain from using unacceptable
methods in the process of proving; subject to a more
thorough study of the risks of the criminal case being
terminated or suspended, will finally ‘reckon’ with the
defense arguments and objections, and not ignore
them.
And the prosecutor, in turn, will be obliged to examine
the criminal case carefully and comprehensively - from
the standpoint of his personal responsibility for his
‘defense’ in the preliminary hearing - rather than simply
signing it before sending it to the court with the case
materials as is customary.
What are the advantages of a preliminary hearing for
the judge and the trial's overall effectiveness?
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Now we shall look at the benefits of a preliminary
hearing through the lens of the judge’s (court’s)
‘interests’ as the central issue of justice administration.
To begin with, the judge will be freed from the duty to
“officially transfer” the case to trial if he is forced to
ignore the investigation's flaws due to a lack of real
powers to correct them.
Second, the pros of exploring the issues of the
subsequent ‘perspective’ of the criminal case with
active participation of the parties is that the adversarial
environment of the preliminary hearing simplifies the
judge’s work, and in particular, even before the start of
the main court session - on the eve of it, in the
conditions of “adversary participation of the parties”
from the position of an active participant in proving,
the judge smoothly moves into the position of a neutral
observer.
Third, there are more examples now in judicial practice
where prosecutors are not well prepared to support
public prosecution in court. As a result, the judge is
forced to ‘take over’ some aspects of the prosecutor’s
function in the trial (for example, when the prosecutor,
who has practically not studied the criminal case, is
unable to lead the line of prosecution and ask
questions to the participants in the trial in the judicial
investigation, the questions are asked by the judge
himself). This is an obviously terrible trend that leads to
a muddled understanding of procedural functions, and
the worst part is that it leads to a conclusion in the
minds of the trial participants about the judge’s
accusatory prejudice. In addition, at the preliminary
hearing, the prosecutor acts as a true ‘owner’ of the
prosecution, rather than delegating to the judge duties
that are unique for his position.
Finally, it is at the preliminary hearing that the judge
will truly exert judicial control over the investigative
authorities' operations, with all the repercussions it
entails.
What is the format of the preliminary hearing?
The following algorithm appears to be appropriate for
conducting a preliminary hearing on the case: If the
judge believes the circumstances of the criminal case
are not properly clarified, or if he perceives grounds
that prevent the case from moving forward, he
schedules a preliminary hearing for the case no later
than ten days after it is received by the court. The judge
conducts the case's preliminary hearing alone, with the
parties present in a private court session.
If the defense counsel fails to arrive for unexplained
reasons, or if his participation in the preliminary
hearing is impracticable, the judge must take steps to
ensure that the newly appointed defense counsel is
present in court. The preliminary hearing of the case
will not be postponed if the victim and his
representation, civil plaintiff, civil defendant, or their
representatives fail to appear at the court session.
The parties’ motions may be considered at the
preliminary hearing. When a party files a motion to
exclude evidence, the court inquires of the opposing
party to see if it has any objections to the application.
The judge grants the motion if there are no objections.
If the defense party's request for additional evidence
or items is relevant to the criminal case, the defense
party’s petition will be granted.
Minutes are kept during the preliminary hearing of the
case in accordance with the rules set forth in the Code
of Criminal Procedure.
A ruling is issued based on the results of the case’s
preliminary hearing, which lays out the conclusion on
the problems at hand. If there are no grounds for
suspending the proceedings on the case, for
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Publisher:
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terminating the case or returning the criminal case to
the prosecutor, the court shall issue a ruling appointing
the case for trial.
The preliminary hearing is the most important stage in
the process of removing inadmissible evidence from
the accusatory base! It should be highlighted that the
parties, or rather the defense, are the primary initiators
of evidence being declared inadmissible. The existing
Code of Criminal Procedure does not give the parties a
direct right to request that certain evidence be
excluded from the charge. In the preparation phase of
the court session, the right to engage in the process of
revising the evidence base is partially present.
As a result, the parties may request fresh witnesses,
experts, or specialists, as well as material evidence and
documents. However, there is no question of evidence
exclusion in this case. The fundamental instrument for
ensuring the ‘quality’ of a criminal case is declaring
evidence inadmissible and removing it from the
evidence base. How will this process be carried out?
The parties may file a move to exclude any material
from the list of evidence produced in court
proceedings during the preliminary hearing. If a motion
is made, a copy of it must be given to the opposing
party on the day it is filed with the court.
A motion to exclude evidence must contain indications
of:
1)
The evidence sought to be excluded by the party;
2)
The grounds for excluding evidence set forth in this
Code, as well as the circumstances supporting the
petition.
The judge has the authority to question the witness
and attach to the criminal case the document indicated
in the petition. If one of the parties objects to the
evidence being excluded, the judge has the authority
to announce the investigative protocols and other
documents available in the criminal case and/or
presented by the parties.
The burden of proof is on the public prosecutor to
refute the defense's arguments when considering a
motion to exclude evidence filed by the defense on the
grounds that the evidence was obtained in violation of
the requirements of this Code. In other circumstances,
the party who filed the petition bears the burden of
proof.
If the judge grants the petition for evidence exclusion
while also scheduling a court session, the ruling
specifies what evidence is excluded and what papers
from the criminal case, supporting the exclusion,
cannot be examined or read out in the court session
and used in the proving process. Excluded evidence is
no longer admissible in court and cannot be used to
support a verdict or other judicial decision.
To summarize, the introduction of a preliminary
hearing into national legislation serves to truly ensure
the principle of adversarial action through active
participation of the process subjects, strengthening
and expanding the procedural powers of the court,
which saves time and effort for the court, law
enforcement agencies, and citizens, as well as timely
restoration of the violated rights of persons
participating in criminal proceedings.
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Publisher:
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