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Volume 04 Issue 01-2022
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
VOLUME
04
I
SSUE
01
Pages:
93-108
SJIF
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FACTOR
(2020:
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(2021:
5.
952
)
OCLC
–
1176274523
METADATA
IF
–
7.659
Publisher:
The USA Journals
ABSTRACT
This article analyzes the types of investigative and other procedural actions, the conduction of which is enshrined in
the criminal procedural law, as well as procedural actions that are reflected in other legislative acts, or are not
regulated in any way, however, nevertheless, in practice they are widely used, for which, legal regulation needed. A
comparative analysis and comparison with the norms of the legislation of the Russian Federation regulating the
procedure for conducting a pre-investigation check was carried out, as well as investigative and procedural actions
allowed at this stage were studied, as well as issues of ensuring the protection of the rights and freedoms of persons
involved in a pre-investigation check were considered. Taking into consideration the results of the study of the types
of investigative and procedural actions available in practice, a number of conditions have been put forward under
which the results of the investigative and procedural actions carried out will meet the requirements of the admissibility
of evidence or may be subject to doubts about admissibility.
KEYWORDS
Preliminary inquiry, investigative and prosecutorial activities, a request for discovery, examination of the crime scene,
auditing, survey, explanation, report, admissibility of evidence.
Research Article
PROBLEMS OF THE PERMISSIBILITY OF EVIDENCE OBTAINED
DURING THE PRODUCTION OF INVESTIGATIVE AND OTHER
PROCEDURAL ACTIONS DURING THE PRE - INVESTIGATION
CONTROL
Submission Date:
January 09, 2022,
Accepted Date:
January 20, 2022,
Published Date:
January 30, 2022
Crossref doi:
https://doi.org/10.37547/tajpslc/Volume04Issue01-15
Макsud Niyazov
Head of Criminal Law Department of Specialized Branch of Tashkent state university of law, 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.
94
Volume 04 Issue 01-2022
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
VOLUME
04
I
SSUE
01
Pages:
93-108
SJIF
I
MPACT
FACTOR
(2020:
5.
453
)
(2021:
5.
952
)
OCLC
–
1176274523
METADATA
IF
–
7.659
Publisher:
The USA Journals
INTRODUCTION
The problem of the admissibility of evidence obtained
during investigative and procedural actions is currently
being widely discussed in scientific circles and among
practical participants of the Republic of Uzbekistan in
accordance with the Law LRU - 442 of 06.09. 2017 year.
[1]
While writing this article, such methods were used as
a historical one with an appeal to the origins of
procedural rules in the past, a systematic approach
associated with substantiating the relationship of legal
norms of various branches of law, a comparative
logical approach, expressed in comparing the legal
provisions of different countries regarding the same
event, and also, by means of analysis, the mental
decomposition of the content of various concepts into
constituent elements was carried out.
It should be noted that the main reason for discussion
and discussion is the incompleteness of the legal
regulation of the stage of pre-investigation
verification. In particular, the limited rights of citizens
in the implementation of pre-investigation verification,
the procedural complexity of using the data obtained
at this stage as evidence, the ambiguity in the
interpretation of the use of materials of operational-
search activity and the elimination of these gaps is a
prerequisite for the effective implementation of the
tasks stipulated by the criminal procedure legislation.
All of the above affects the definition of the
requirements for evidence, in particular for such a
property as its admissibility.
According to K.I.Sutyagin, the institution of
admissibility of evidence is a serious obstacle to illegal
behavior of law enforcement officers, abuse on their
part, negligent and negligent attitude to the norms of
the law during the collection of evidence [2, p.28].
Developing this idea, it is appropriate to quote the
words of P.A. Lupinskaya that “in conditions when the
fairness of justice presupposes a system of guarantees
to protect human rights from unfounded accusations
and convictions, prohibits any form of violence against
a person to obtain his testimony, protects the suspect,
the accused from testifying against himself, provides a
number of persons with witness immunity, the rules on
the admissibility of evidence acquire special
significance as a guarantee of human and civil rights
and freedoms and justice ”[3, p.8].
If to define the tasks of the pre-investigation check,
then they are, in accordance with Art. 3202 of the Code
of Criminal Procedure [4] are reduced to carrying out
measures to verify statements, messages and other
information about crimes and making decisions on
them, taking actions to consolidate and preserve
traces of crimes, objects and documents that are
significant for the case.
L.A. Tatarov rightly notes that “Collecting, checking
and evaluating evidence without a specific goal is
meaningless, since it cannot be an end in itself in the
process and a kind of self-sufficient “thing in itself”.
Justification and verification of specific conclusions
and decisions in a criminal case by the totality of
evidence obtained, verified and evaluated in
accordance with the procedure established by law -
this is what unites two aspects of proof into one whole,
gives meaning and meaning to its elements, ... in order
to implement the purpose of criminal proceedings "[ 5,
p. 17.]
Currently, the criminal procedural law provides for a
limited list of investigative and other procedural
actions permitted at the stage of pre-investigation
verification, the purpose of which is to determine the
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The USA Journals
presence of signs of any crime in the event under
investigation and to protect non-criminal offenses
from those that have criminal nature. Some of the
actions performed during the pre-investigation check
are investigative (inspection of the scene of the
incident,
objects,
documents,
corpses,
the
appointment and production of an examination, as
well as revisions), the second are verification or
procedural
(obtaining
explanations,
submitting
documents and items, conducting audits and official
checks, conducting operational-search activities).
Although the CPC does not provide for a list and
description of the concept of "other procedural
actions", based on current practice, it is advisable to
include under this concept the procedural registration
carried out outside the framework of any investigative
actions.
According to T.S. Simonova “to establish the presence
or absence of grounds for initiating a criminal case, it is
necessary to carry out verification activities. The
factual data, on the basis of which a conclusion is made
about the presence or absence of grounds for initiating
a criminal case, can be obtained only from procedural
sources” [6, p. 17].
However, the procedure for the production of
procedural actions is not fixed in all cases, as a result of
which, in investigative and judicial practice, there is no
unified approach to documenting individual procedural
actions and using the data obtained as evidence in a
criminal case.
The course of investigative and other procedural
actions, usually, are recorded in procedural acts called
protocols (from the Greek. Protokollon-the first sheet
of the manuscript). Protocols are a kind of written
documents (from Lat. Dokumentum - sample,
certificate, proof); they, in turn, are material objects in
which information about any facts is recorded with the
help of signs, symbols and other elements of natural
and artificial language. [7, p.61]
The Criminal Procedure Law provides for the necessary
requirements, legally significant details for the
protocols, but does not limit the way the protocols are
drawn up, both handwritten and protocols drawn up
with the help of technical means are acceptable. At the
stage of pre-investigation verification, it is often
possible to observe the presence of mixed methods of
formalizing the protocols. So, the forms of the
protocols can be prepared in advance by law
enforcement officials, in particular those involved in
emergency trips as part of operational investigative
groups, for their subsequent execution or filling out by
hand, in the event of a necessary emergency situation.
It should be noted that the RF Code of Criminal
Procedure does not provide for a separate term as
“pre-investigation check”, however, similar tasks are
performed at the stage of initiating a criminal case. PA
Lupinskaya, analyzing evidence at the stage of
initiation of a criminal case in the Russian Federation,
emphasized: “Since proving in a criminal process
involves the production of investigative actions to
collect and verify evidence, one should come to the
conclusion that criminal procedural proof does not
take place at this stage ... This conclusion is not shaken
by the cases indicated in the law when certain
investigative actions can be carried out at this stage of
the process. " At the same time, the data obtained at
the stage of initiating a criminal case, in her opinion,
could be used “for subsequent proof. Statements and
letters of citizens, messages from institutions,
enterprises, ... acts of audits, accounting documents
received before the initiation of a criminal case can be
used as written documents or material evidence,
provided they are properly checked by an investigative
means (for example, the interrogation of the person
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Publisher:
The USA Journals
who made the statement or submitted materials etc.)
”[8, 145].
In this case, proceeding only from the limitations in the
conduct of investigative actions, it was denied the
possibility of recognizing the value of full-fledged
evidence for the materials of the pre-investigation
check, giving them the status of only intermediate or
preliminary evidence. The independent evidentiary
value behind the information contained in these
materials, without their verification in the course of the
subsequent preliminary investigation, was not
recognized, which, of course, does not correspond to
the objectives and purpose of this stage.
In addition to the limited procedural possibilities,
another problematic point is the establishment of the
reliability of the information contained in the materials
of the pre-investigation check. It is not always possible
to check the reliability of information about a crime,
since the reliability depends on the presence of any set
of information about the facts, i.e. sufficiency, which is
the main deficit at the stage of pre-investigation
verification. This explains the fact that the decision to
initiate a criminal case can be based on a minimum
sufficient number of facts. Although, the most
preferable option is the one in which the totality of the
collected evidence unambiguously excludes the
erroneousness of the decision.
The evidence collected during the pre-investigation
check is still limited, probable, and this often leads to
the fact that at the end of this stage of the criminal
process and the adoption of a procedural decision to
initiate a criminal case, a primary, preliminary
qualification of the crime is made, which can be
supplemented, changed in the course of further
investigation, which, in principle, is normal practice in
the activities of the competent authorities.
First of all, it should be noted that the current Criminal
Procedure Code of the Republic of Uzbekistan, in the
relevant articles regulating the procedure for
conducting an investigative action prior to the
initiation of a criminal case, directly authorizes the
production of a number of investigative actions: Article
137 authorizes an inspection of the scene of the
incident, as well as according to Article 180 the
appointment of an examination, allows according to
Art. 1871 conducting an audit, does not prohibit in
accordance with Art. 199-201 demand, presentation of
objects and documents, and also does not regulate the
procedure for conducting a survey and obtaining
explanations, which are absolutely necessary to clarify
the question of whether there is a basis for initiating a
criminal case.
However, in part 2 of Article 329 of the CCP it is
indicated that during the pre-investigation check,
additional documents, explanations can be requested,
as well as the detention of a person, an inspection of
the scene of the incident, an examination, and an audit
is appointed. In this case, we are dealing with the
inconsistency of legal norms that arose, apparently, as
a result of amendments and additions to certain
articles, without taking into account the requirements
of the norms governing the procedure for conducting
investigative and procedural actions. Naturally, if any
evidence is obtained from the results of the above
actions during the pre-investigation check, the results
of these investigative actions, despite the conflict of
legal norms, should not become a victim of
inconsistency of laws, allowing crime to evade
responsibility, but should have the value of full-fledged
evidence.
The above list of investigative actions at the stage of
pre-investigation verification included such actions,
without the performance of which it is difficult to
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Volume 04 Issue 01-2022
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(ISSN
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VOLUME
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SJIF
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IF
–
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Publisher:
The USA Journals
establish the presence of signs of a crime. For example,
without inspecting the scene, it is impossible to have at
least any primary data about the event, to obtain
material carriers of evidence, without an audit it is
impossible to determine the amount of damage
caused or unpaid tax, without an expert study it is
impossible to find out the cause of death of a person,
the nature and amount of harm caused to his health. ,
to classify the seized substances as narcotic,
psychotropic or other substances prohibited in
circulation and to answer a number of other important
questions, which is absolutely necessary for a legal and
reasonable solution to the issue of initiating a criminal
case.
Also, at the stage of pre-investigation verification, in
accordance with part 1 of Article 87 of the Criminal
Procedure Code, it is permissible to carry out
operational-search measures, however, due to the
specifics and existing features of this type of activity, in
order to avoid superficial and impartial discussion, it
seems expedient to consider the admissibility of
evidence obtained during operational-search activities
as part of a separate study.
It is important to note that the results of the
investigative actions carried out in the course of the
pre-investigation check of the investigative actions
provided for by the law in the event of the subsequent
initiation of a criminal case are used in the preliminary
investigation and trial of a criminal case as full-fledged
evidence and do not require any legalization,
verification or re-production of the same actions. At
the same time, the production of investigative actions
prior to the initiation of a criminal case, which
according to the law can be carried out only in the
process of preliminary investigation and are not
provided for in the law with a direct indication of that,
should entail the recognition of the evidence obtained
as a result of this, inadmissible.
We would like to start with the study of such an
investigative action as inspection and such a variety as
inspection of the scene. Part1 of Article 136 of the CCP
provides for all types of examinations at the stage of
pre-investigation verification. However, Article 137 of
the Code of Criminal Procedure separately stipulates
the admissibility of an inspection of the scene before
the initiation of a criminal case. The definition of the
scene of the incident in the Criminal Procedure Code is
not given, however, well-known scientists interpret it
as follows - "the scene of the incident is an area or a
room where traces of an event requiring investigation
were found." [9, p. 41]
In addition, in accordance with paragraph 1 of part four
of Article 91 of the Code of Criminal Procedure, when
examining the scene of an especially serious crime, the
course of the investigative action is subject to video
recording. At the same time, the protocol of the
investigative action must indicate the technical means
used in the production of the investigative action, the
conditions and procedure for their use. The protocol
must state that the persons participating in the
investigative action were warned in advance about the
use of technical means in the production of the
investigative action, and the record must be attached
to the protocol of the investigative action. Failure to
comply with the requirements of the Criminal
Procedure Code on mandatory video recording of the
course of the investigative action, as well as the loss of
the recording, makes the resulting protocol of the
investigative action questionable, i.e. admitting doubts
about the reliability and, as a result, evidence that does
not meet the requirements of admissibility. At the
same time, attachments to the protocol of an
investigative action cannot have an independent
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Publisher:
The USA Journals
evidentiary value outside of the connection in the
protocol itself. However, how an official carrying out a
pre-investigation check, not yet having clear ideas and
evidence of the committed event, can unequivocally
qualify the committed act as a particularly grave crime,
remains a question. In this regard, in order to avoid the
rejection of important and irreplaceable evidence,
practical workers must accompany each inspection of
the scene with a video recording.
As mentioned, there are several types of inspections,
and some of them, as independent types of inspection,
are relatively rare. For example, the examination of
documents or premises, as a separate investigative
action, is not urgent and can be carried out in the
course of the preliminary investigation without serious
damage to the criminal case. However, if a specific
locality, dwelling or other premises are at the same
time the scene of the incident, or documents, are
found at the scene of the actual or alleged crime, or
were at the place where the corpse was found, then
the relevant officials, based on Part 2 of Art. 137 of the
Code of Criminal Procedure is entitled and even obliged
to carry out a full inspection of these objects, with their
removal from the scene. When inspecting the premises
and the area, no search actions are expected (opening
safes, moving installed furniture, and even more
damage to property, etc.). Inspection of the scene
involves, first of all, fixing the location, visually
observed objects and documents at the place of
production of the investigative action and their
external state. The consolidation and strict observance
of such rules will contribute to the legality of the pre-
investigation check, preventing the substitution of the
content of some investigative actions by others, which
in turn will ensure the indisputability of the property of
admissibility of evidence obtained at the stage of pre-
investigation verification, not allowing to unreasonably
expand the range of procedural and investigative
actions before initiating a criminal case ...
If, during the pre-investigation check, the need to
inspect the area and premises that are not the scene of
the incident arises, the CPC provides for the mandatory
issuance of a resolution, which will indicate the
justifying reasons for its conduct. If the protocol of the
investigative action is the result of the actions taken,
then the grounds and reasons for its conduct must be
indicated in the decision on the performance of the
investigative action. Inspections of premises and
terrain that are not the scene of the incident, without
issuing a decision on its production, indicate a violation
of the procedure for conducting an investigative action
and entail the inadmissibility of evidence obtained
during the investigative action.
At the stage of pre-investigation verification, objects or
documents may be attached to an oral (including using
sign language) or written statement of a person about
a crime. In this case, the items and documents attached
to the application must be examined and described in
detail either in the protocol for accepting an oral
application, or in a separate protocol for examining
documents. If a statement of a crime was received by
regular or e-mail and documents were attached to it
(including in electronic form), then this also requires
drawing up a protocol of inspection of the document,
and in the case of an audio or video file, it is necessary,
in addition to inspecting the medium, and indicate
information about the characteristics of the media
content, additionally carry out a transcript of the
conversation, for attachment to the application. In this
transcript, the communicating parties are not
personified, i.e. only general generic designations are
indicated - man, woman, interlocutor No. 1, No. 2. Even
if the person carrying out the pre-investigation check
recognizes someone in the voice of the attacker,
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before carrying out the relevant expert research, the
indication of the identification data of a certain person
will be unreasonable. In addition, the applicant, in each
case, must be warned of criminal liability for knowingly
false denunciation, which is indicated in the protocol
for receiving an oral statement or a written statement
and certified by the applicant's signature.
Often used in practice, granted to the investigator, the
interrogating officer, the right, without seizure or
search, to request documents and items for their
temporary use in the performance of investigative
actions also causes an ambiguous understanding. It
should be noted that the legislator here, too, deprived
of his attention the bodies carrying out the pre-
investigation check. In particular, article 329 of the CCP
provides for the possibility of requesting documents
during the pre-investigation check, and in the articles
regulating the procedure for carrying out this
procedural action, the bodies carrying out the pre-
investigation check are not indicated. Requesting
documents and items, in accordance with Art. 199 and
201 of the Criminal Procedure Code is carried out on the
basis of a requirement, which, apparently, should be
understood as the direction of an official request
(letter), binding on all institutions, enterprises,
organizations, officials and citizens on behalf of the
investigator, interrogator or their leaders.
However, what is the procedure for selection, seizure
or presentation of documents and objects, is it possible
to apply measures of procedural coercion, if so, to
what extent it is possible, as well as what measures of
responsibility for evasion or delay in the provision of
these materials are available, the law does not give an
answer. Upon receipt of items and documents, a
protocol is drawn up for the submission of items and
documents, however, the legislator has left the stages
of search, discovery, selection of necessary items and
documents outside the scope of legal regulation. The
answer seems to be obvious. The usual and most
common procedure for the seizure of necessary
documents and items is carried out in the framework
of such investigative actions as search and seizure.
However, in the list of investigative actions, the
production of which is allowed before the initiation of
a criminal case during the pre-investigation check,
there is no search and seizure in Art. 157-164 of the
Criminal Procedure Code, there are no rules allowing
their production before the initiation of a criminal case.
Documents and items that are important for the pre-
investigation check carried out can also be seized
during the inspection of the scene of the incident and
the corpse, audit during arrest and even examination
(for example, fingerprints and biological materials in
the study of the crime instrument or biological
materials during the forensic medical examination the
victim himself). That is, the seizure of documents and
objects during the pre-investigation check is also
allowed as an integral part of other investigative and
procedural actions permitted at this stage of criminal
proceedings.
This also implies the inadmissibility of the widespread
practice of drafting by law enforcement officers, not
provided for by any laws, "protocols of seizure",
"protocols of voluntary extradition" and other similar
documents. Only scrupulous observance during the
seizure of all the provisions of the law will make it
possible to consider the relevant protocols of
investigative actions, as well as the seized documents
and objects themselves, as admissible evidence.
Consideration should be given to such forms of
claiming documents and items that are closely related
to the reasons for initiating a criminal case. In
particular, from the point of view of law, enterprises,
institutions and organizations, as well as their officials,
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can report to law enforcement agencies not only about
those crimes that are committed on their territory, but
also about any other crime they know. Although for
initiating a pre-investigation check, the very fact of the
appeal and its registration in accordance with the
requirements of the Criminal Procedure Code is
important, and not its literary form. Naturally, when
applying, these subjects of legal relations may not be
aware of the circumstances that are important for
making a procedural decision. This deficiency can be
eliminated, inter alia, by sending a request with the
reclamation of documents and objects that are
available for making a procedural decision.
When carrying out a pre-investigation check on media
materials, it is necessary to take into account that
publications in the press and other media can also be
both true and false (deliberately or in view of delusion).
Therefore, it is premature to make decisions on the
merits only on the basis of voicing any information,
without carrying out a full study and research of media
materials. In this case, relationships arise between the
authorities carrying out the pre-investigation check on
the one hand, with the media representatives and the
author of the publication on the other hand. The
authorities carrying out the pre-investigation check,
having received information about the committed or
planned crime through the media, are obliged to check
the reliability of the published information, for which it
is necessary to obtain and evaluate this evidence by
sending a request for the provision of documents and
materials that were the primary sources of the
publications carried out. Only adherence to this
procedure will ensure admissibility and the possibility
of making well-grounded procedural decisions.
After all, “any final decision that completes one or
another procedural stage can be made only if there is a
set of factual data sufficient to answer the main
question of this stage. The factual data represent the
grounds for the decision, and their establishment takes
place by way of proof” [10, p.82]
In addition, according to part 2 of article 201 of the
Criminal Procedure Code, at the request of authorized
persons,
officials
of
enterprises,
institutions,
organizations are obliged to carry out an audit or other
official check within their competence. The need for
this action is due to the fact that each organization,
institution has its own local rules, about which the
person carrying out the pre-investigation check, at the
initial stage of the check, cannot have complete
information, and therefore a service check is assigned.
It is assumed that the persons conducting the official
audit, being competent specialists, being guided, inter
alia, by internal local acts, determine the legality of the
actions of the inspected persons, or specifically
indicate the violations or deviations committed by
them. This issue is of particular importance when
investigating crimes related to the activities of
paramilitary or regime organizations and enterprises.
The conclusion of an internal audit has the value of
evidence, although preliminary, but it is necessary and
meets the requirements of admissibility. An official
check creates the preconditions for carrying out, after
the initiation of a criminal case, individual investigative
actions that are not duplicative, but rather aimed at
strengthening the reliability of the conclusion of an
official investigation.
Moreover, it should be borne in mind that the Criminal
Procedure Code provides for audit as an investigative
action, from which the audit carried out by the
enterprise itself, the institution, the organization at the
request of the inquiry officer, investigator and
prosecutor, firstly, by the fact that only employees of
the institution itself are involved, then how, within the
framework of an investigative action, its conduct is
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Publisher:
The USA Journals
entrusted to the bodies specified in Article 1873 of the
CCP, secondly, it is carried out on the basis of a request
(written request), and not a resolution, and thirdly, it is
carried out in a specific direction (warehouse, cash
desk) and within the framework of the shortcomings
already identified there, fourthly, the procedure for its
implementation is also regulated by internal acts, while
the procedure for conducting an audit, as an
investigative action, is regulated by the Criminal
Procedure Code. Based on the results of the audit, an
act is drawn up, submitted to the person carrying out
the pre-investigation check, which has legal force and
admissibility as evidence.
Another type of other procedural documents that we
can find in the materials of the pre-investigation check
are the reports of the employees who carried out the
pre-investigation check. If information and traces
indicating a crime are found, directly by the inquiry
officer, investigator, prosecutor, as well as by the div
carrying out the pre-investigation check, in the course
of administrative or other procedural activities, signs
of a crime and in the absence of the possibility of
drawing up protocols of investigative actions, i.e. when
the actions of the offender do not leave visible traces
and they cannot be recorded (for example, a threat to
a subordinate to a superior, the absence of a person
sentenced to a sentence of restraint of liberty in the
place where the serving of the sentence is
determined), in practice, reports or acts are drawn up.
It should be noted that a report (act) as a reason to
initiate a case arises when there is neither a statement
nor a confession, and the signs of a crime have
nevertheless come to the attention of law
enforcement agencies, which are obliged to identify
crimes and expose the perpetrators. Therefore, the
issue of recognizing a report or act as another
procedural document, in the context of a legislative
gap, as admissible evidence is an object of controversy.
A report (act), having no procedural regulation, can
also serve as a means of derivative fixation, i.e. facts
and events recorded in the protocols of investigative
actions, conclusions based on the results of studying
the requested documents or audits carried out, official
proceedings are indicated in the reports in the
notification and permissive direction. Thus, the person
carrying out the pre-investigation check usually
informs his manager about the intermediate results of
the pre-investigation check (because the final result of
the pre-investigation check is the adoption of a
procedural decision, drawn up in the form of a
resolution) and either notifies about the planned
measures, or asks for permission to carrying out
further verification actions. These documents, subject
to certain requirements, can be recognized as
admissible within the framework of a pre-investigation
check, only if they are used as sources of reference or
indicative information, i.e. in terms of legal force, they
cannot be compared with the protocols of
investigative actions. In the case when the reports
actually replace the protocols of investigative and
procedural actions (examination, presentation of
objects, documents and questioning), they cannot be
recognized as admissible and form the basis for making
a procedural decision.
Also, for crimes with an administrative prejudice, there
is involvement in the orbit of pre-investigation
verification of procedural documents drawn up in
accordance with the Code of Administrative
Responsibility for revealed offenses, which, by virtue
of the requirements of the law, are now subject to
qualification under articles of the Criminal Code. In this
case, procedural documents drawn up in accordance
with the requirements of the Code of Administrative
Responsibility after an appropriate assessment could
be recognized as admissible if it were not for the
imperative requirement of Part 1 of Article 90 of the
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CCP that information and objects can be used as
evidence only after they have been recorded in the
protocols of investigative actions.
Next, it is necessary to consider the issue of the
admissibility of conducting examinations. Although the
Code of Criminal Procedure does not prohibit or
restrict the appointment of any types of examinations,
nevertheless, in practice and in the literature, the
question of what kind of forensic examinations is
advisable and permissible to appoint and conduct
during the pre-investigation check is also discussed. In
particular, practitioners often experience a shortage of
time, and therefore, the authorized person, trying to
ensure, after the initiation of a criminal case, more
acceptable conditions for the subsequent investigation
or for "safety net", or to justify the extension of the
pre-investigation inspection period, may appoint
expert examinations and "wait". At the same time, we
must not forget about the main task of the pre-
investigation check, which is to establish sufficient
data indicating signs of a crime. In this connection,
when comprehending this issue, it seems that it is
necessary to proceed from the requirements of Article
173 of the Criminal Procedure Code, which provides for
cases of mandatory appointment of an examination,
i.e. without the conclusions of which it is difficult to
resolve the issue of the availability of sufficient data
indicating signs of a crime. For example, conclusions on
the nature and degree of harm to health, on the causes
of death, on the classification of seized items as
firearms or cold weapons, explosive, narcotic,
psychotropic substances or their analogues, and
others. It is necessary to take into account the well-
grounded
opinion
that
it
is
fundamentally
unacceptable to appoint and conduct, at the stage of
pre-investigation, forensic psychiatric, psychological-
psychiatric and sexological-psychiatric examinations.
[11]
Appointment of examinations at the stage of pre-
investigation verification may seem completely
harmless, because on various issues that require their
permission, reasonable conclusions of a competent
person will be obtained. Then why not appoint any
possible types of examinations during the pre-
investigation check? The fallacy of this opinion can be
judged on the following grounds. First, at the stage of
pre-investigation verification, the rights of potential
suspects may be affected, which are not regulated in
any way at the stage of pre-investigation verification.
Whereas when appointing an examination within the
framework of an initiated case, the suspects have the
rights that provide the opportunity to participate and
express their opinion regarding the decision to appoint
an examination. Secondly, when conducting expert
examinations, as a result of which material evidence is
completely consumed, in the event of a subsequent
application by the suspect of a petition and justifying
the need for an additional or repeated expert
examination, its execution will be simply impossible.
Thirdly, the term of the pre-investigation check in
accordance with Art. 329 of the Criminal Procedure
Code is limited to 10 days, which can be extended if
there are grounds for up to 30 days and in order to
avoid an unreasonable extension of the pre-
investigation check period, it is necessary to be guided
by the collection of the necessary evidence sufficient
to solve the tasks of the stage.
The issue of the legality of the audit during the pre-
investigation check also needs clarification. In practice,
audits are in demand mainly in proceedings on cases of
certain crimes of an economic nature. An audit of legal
entities and individual entrepreneurs is appointed
when information about the circumstances relevant to
the case can be obtained by studying and comparing
accounting, financial, statistical, banking and other
documents of the audited entities.
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In connection with the reforms carried out in our
country on the initiative of the President of the
Republic of Uzbekistan aimed at supporting
entrepreneurship, the audit of business entities is
carried out only within the framework of a criminal
case initiated on the facts of already revealed violation
of the law by him, i.e. at the stage of pre-investigation
verification, an audit of business entities cannot be
carried out and entails the inadmissibility of audit acts
as evidence. At the same time, before the initiation of
a criminal case, an audit can be carried out in relation
to other legal entities (budgetary and non-profit
organizations). [12]
The audit in relation to business entities is carried out
on the basis of the results of the "risk analysis" system,
which involves the initiation of inspections based on
the degree of risk of violations of the law by the
relevant business entity after registration in the
Unified Electronic Registration System of inspections.
[thirteen]
In Appendix No. 2 to the Decree of the President of the
Republic of Uzbekistan dated
On July 27, 2018, No. UP-5490 provides for the List of
inspections carried out in order to notify the
authorized div by registering them in the Unified
System for Electronic Registration of Inspections.
Based on the foregoing, other types of audits, non-
observance of the order or their conduct by
unauthorized entities at the stage of pre-investigation
verification are not permissible, and all the above
violations of the audit entail the inadmissibility of using
the evidence obtained during the audit as grounds for
initiating a criminal case.
As we said, information obtained as a result of
investigative actions carried out during the pre-
investigation check will have the value of evidence in a
criminal case if it has the properties of admissibility,
that is, it will be obtained in compliance with all the
requirements of the criminal procedure law regarding
both the form and and content. However, a significant
part of the materials of the pre-investigation check is
information obtained not through the production of
investigative actions, but as a result of the
implementation of other verification measures not
stipulated by the law, in particular, upon receipt of
explanations from various persons. However, the text
of the Criminal Procedure Code does not disclose the
content of the term explanation, nor does it regulate
the procedure for producing the specified verification
action, nor the procedural document that must
formalize its course and results. The laws regulating
the activities of law enforcement agencies ("On the
Internal Affairs Bodies", "On the State Security Service
of the Republic of Uzbekistan", "On the National Guard
of the Republic of Uzbekistan") provide for the
mandatory fulfillment by all state bodies, other
organizations,
officials
and
citizens
of
the
requirements for giving explanations about the
revealed violations of the law.
One of the most important properties of the legal
process is documenting its progress and results. This is
achieved through a legally established system of
procedural documentation. [14, p.242]
So, in Art. 144 of the Code of Criminal Procedure of the
Russian Federation, the right of an investigator, an
interrogator and their leaders, when checking reports
of crimes, to receive explanations is specified, as well
as the obligation to explain to persons participating in
the production of procedural actions their rights: the
right not to testify against oneself, one's spouse
(spouse) and other relatives relatives; use the services
of a lawyer; to bring complaints about actions
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(inaction) and decisions of the investigator and other
officials. [15]
However, in the national legislation there is no
regulation of the procedural procedure for the
selection of explanations, the existence of any rights of
persons who receive explanations, the possibility of
applying procedural coercion measures and the
consequences of refusing to write an explanation,
especially for persons whose actions are subject to
verification.
The question arises as to what type of evidence can be
attributed to explanations? It seems that all the pre-
investigation materials obtained not as a result of
investigative actions: explanations, acts of official
checks and audits are obtained as a result of
procedural actions and their order is not strictly
regulated, there are no formal requirements imposed
by the law on this type of documents, which, of course
, should be taken into account when assessing their
legal effect. However, it would be wrong to
underestimate them. Sometimes they can play, and
often play, a decisive role in disclosing, investigating
crimes and exposing the perpetrators.
Getting an explanation is the most common pre-
investigation check. Investigative practice allows us to
conclude that a survey is carried out during each pre-
investigation check and consideration of statements
and reports of a crime. In the materials of criminal
cases, explanations may be absent in very rare cases.
Explanations must be obtained from the applicants,
victims, eyewitnesses, persons in respect of whom the
check is carried out. The purpose of the explanation is
to collect information on facts and events as soon as
possible in order to make a legal and reasonable
procedural decision
on
the conducted
pre-
investigation check.
The process of obtaining an explanation is a
verification action, which consists in interviewing the
interviewed person in order to obtain information
regarding the subject of the pre-investigation
verification. An interrogation is similar in its essence to
such an investigative action as an interrogation, and
explanations - to testimony; also during interrogation,
a warning about criminal liability has legal
consequences, while when receiving an explanation,
this plays only a formal role, and therefore, in terms of
evidentiary power, the explanation is inferior
interrogation protocol. As V.Yu. Stelmakh rightly
noted, “the differences between them are more of a
formal legal nature and are due to the peculiarities of
the normative regulation, and not the content” [16, p.
148]
Is it possible to consider the data indicated in the
explanation admissible if the procedure for obtaining
and determining them is not given to the explanations.
V.S. Balakshin, points out that the law should "spell out
a clear, common sense mechanism for involving
explanations in the sphere of criminal proceedings,
checking, assessing their relevance, admissibility and
reliability, like any other evidence" [17, p. 126].
To eliminate this gap in the legislation, B.A. Rajabov
proposed to make appropriate additions to the
criminal procedure law, indicating that “obtaining an
explanatory note is a procedural action consisting in
the receipt of information in writing by authorized
subjects from citizens and officials who have this
information about the circumstances relevant to the
resolution of the case on the merits ”, and also
presented opinions on the procedure necessary for the
implementation of the receipt of the explanatory
letter. [18, p.48].
At the same time, among the scientists of the Russian
Federation, there are polar points of view on the
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evidentiary power of explanations. Some scholars
denied it [19, p. 41], others considered it possible to
equate explanations with testimonies [20, p. 78], and
still others attributed the explanations to other
documents [21, p. 54–55]. This dispute by its definition
was resolved by the Constitutional Court of the Russian
Federation of May 28, 2013 No. 723-O, having
determined that the explanations received before the
initiation of the criminal case refer to “other
documents” [22].
The national investigative and judicial practice, lacking
proper regulation, also follows the latter path and
classifies explanations among other documents. The
assignment of explanations to other documents seems
to be a procedurally justified solution to the problem
being analyzed. In particular, the phrase "other
documents" is used in Art. 26 of the Code of Criminal
Procedure of the Republic of Uzbekistan as documents
existing separately and at the same time in parallel with
protocols of investigative actions. In addition, when
drawing up an indictment in criminal cases in its
relevant part, the explanations of persons are
indicated among the "other documents" confirming
the guilt of the accused.
At the same time, one cannot ignore the conditions,
the observance of which will allow attributing
explanations to admissible evidence. It is advisable to
fix such conditions in the criminal procedure law. First,
a detailed regulation of the procedure for calling and
conducting a survey is necessary, including in relation
to a separate category of the algorithm of actions
performed and the consolidation of its results. Giving
the necessary procedural form is absolutely necessary
to obtain admissible evidence. Secondly, indicate the
rights and obligations of the respondents, as well as
provide for cases limiting the right to receive
explanations, by analogy with witness immunity.
Thirdly, it is advisable to evaluate explanations as
evidence in conjunction with other evidence, which
acquires the value of a separate evidence in the
absence of the opportunity to interrogate a previously
interviewed person, or in connection with changes in
the initially presented testimony. This rule is due to
situations where there is reason to believe that a
significant change by the person interrogated in the
previously reported information is caused by the
influence of other persons or an attempt to avoid
responsibility. If there are significant contradictions in
the explanations and testimonies of the same person,
the possibility of examining explanations as evidence
in a criminal case and assessing them in conjunction
with other evidence is important for considering a
criminal case on the merits.
The need to use explanations is also substantiated in
A.V. Belousov [23, p. 69-71].
Also, legislative consolidation is subject to the
obligation, in appropriate cases, to ensure the
participation in the survey of an interpreter, a legal
representative of an incapacitated or minor, a teacher,
a psychologist and cases of their inadmissibility or
replacement, which has been repeatedly paid
attention to in science. [24, p. 29]
Thus, the explanations received by the appropriate
person, clothed in the form of procedural documents,
not only serve as primary data indicating signs of a
crime, but can also be quite admissible evidence in a
criminal case.
According to part 2 of Article 87 of the CCP, the
accused and his defense counsel may also participate
in the proof in criminal cases, including presenting
evidence. The possibility of participation of defenders
(lawyers) during the pre-investigation check is limited.
According to the Code of Criminal Procedure, the initial
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possible moment for a defense attorney to enter the
criminal process is the participation in the
interrogation of a person called as a witness, which, of
course, is carried out within the framework of an
already initiated criminal case. In this connection, it is
necessary to state that there is no possibility of
participation in the proof of defenders (lawyers) at the
stage of pre-investigation verification, which, of
course, does not contribute to the protection of the
rights, freedoms and legitimate interests of the
participants in the process, as well as to ensure the
adversarial process.
Summing up all of the above, as requirements for the
admissibility of evidence obtained in the course of
investigative and procedural actions, it is necessary to
take into account as general requirements for
conducting investigative actions, which should include:
compliance with the principles of the criminal process,
ensuring the protection of state secrets, compliance
and ensuring guaranteed rights participants in the
process, general rules for securing evidence in
protocols and auxiliary methods for securing evidence,
as well as special requirements provided for by the very
procedure for conducting investigative actions
(mandatory participation of attesting witnesses,
issuance of a resolution and rules for drawing up a
protocol, procedure for conducting an audit, etc.)
Violation of general and special requirements for the
procedure for conducting a procedural action, as a way
of collecting evidence, does not always give rise to
doubts about the reliability that could not be
eliminated. The types of violations can be grouped into
the following groups:
1.
Violations that distort the essence and content of a
procedural action always give rise to irreparable
doubts about the reliability of information and, as
a consequence, affect their admissibility. Under no
circumstances can they be admitted, and
moreover, their presence will alienate from the
main goal of the criminal process - the truth.
2.
Violations regarding the form of securing evidence
do not always entail their inadmissibility. In case of
individual violations, there is a possibility of their
elimination by carrying out additional procedural
actions, i.e. in case of admitting violations related
to the procedure for fixing, registration of the
course and results in the corresponding protocols
of investigative actions, the issue of their
elimination can be considered. The disadvantages
of the procedural form can be eliminated by
carrying
out
additional
investigative
and
procedural actions. Only in this case it is possible to
recognize the initial information about the facts, in
conjunction with the data that eliminate doubts
about their reliability, meeting the requirement of
admissibility.
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