The USA Journals Volume 03 Issue 10-2021
25
The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
October 30, 2021 |
Pages:
25-32
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue10-06
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‘
ABSTRACT
The article explores some matters in the field of the citizen protection from illegal criminal prosecution
and accusation, restriction of their rights and freedoms.
Also examined a mechanism of compensation for harm caused by unlawful or unjustified criminal
charges. Proposals for improving legislation are justified.
KEYWORDS
Illegal Actions, Rehabilitation, Reparation, Restoration Of Rights, Criminal Proceedings.
INTRODUCTION
It should be noted that the priority task of the
court, such as the protection of human rights,
has to do with the task of recognizing the
innocence of an individual and restoring his
violated rights, and therefore rehabilitation is
one of the main directions of justice. That is,
regardless of the specialization of the court,
whether the issue of rehabilitation is
considered by the criminal court or the civil
court, the court performs its constitutional
function, ie to guarantee human rights, to
restore violated rights.Pursuant to Article
40510 of the CPC, a criminal case may be
terminated on the grounds of rehabilitation
upon the conclusion of the initial trial.
Any violations of the law committed during the
inquiry and preliminary investigation may be
remedied by the court in the appointment of
the case for trial or in the course of the trial. As
the sole public div that administers justice,
the court must identify and remedy any
Procedural Order And Consequences Of Application Of The
Institute Of Rehabilitation By The Court
Sattorov Alisher Yarashevich
Independent Researcher At The Supreme School Of Judges, 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.
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deficiencies, inaccurate facts, deficiencies in
the inquiry and preliminary investigation.
Pursuant to Article 40510 of the CPC, the court
shall terminate the criminal case in the
presence of the circumstances provided for in
Article 83, paragraph 1 of Article 84 of the CPC.
The court ruling shall specify the grounds for
termination of the criminal case, resolve the
issue of revocation of precautionary measures,
as well as measures to secure a civil suit, and
resolve the issue of material evidence.
However, in practice, there are very few cases
of termination on the grounds of rehabilitation
at the stage of appointment of a criminal case
because the grounds of rehabilitation can be
determined mainly on the basis of a petition
filed by the party.
Rehabilitation, that is, finding a person who has
not committed a crime or being involved in a
crime
committed,
acquitting
him
or
terminating the criminal case, is a primary
issue. However, this decision only initiates the
rehabilitation process.
It should be noted that the scope of rights set
forth in Article 310 of the CPC is not final, as the
exact rights of a person as a result of criminal
proceedings will depend on the specific
circumstances of the case.
For this reason, we support the opinion of
some
scholars
that
the
rehabilitation
mechanism consists of procedural and non-
procedural parts. The reason is the procedural
part of rehabilitation:
1)
Recognition of the fact of illegal criminal
prosecution or unjustified application of
coercive procedural measures by acquittal
and decision to terminate the criminal case;
2)
Recognition
of
the
right
of
the
rehabilitated person to compensation for
property damage caused to him;
3)
Notify the rehabilitated person of the
decision, explain the procedure for
appealing, as well as the procedure for
compensation for property damage and
the restoration of other rights;
4)
The rehabilitated person applies to the
court, prosecutor, investigation or inquiry
div that issued the decision on
rehabilitation;
5)
No later than one month from the date of
receipt of the application by the court,
prosecutor, investigation or inquiry div
that issued the decision on rehabilitation,
take measures prescribed by law to
determine the amount of damage and
restore the right to request the necessary
documents;
6)
Making a decision on making monetary
payments for damages, elimination of the
consequences of moral damage and
restoration of other rights;
7)
The stages of appealing to the court
against the decision of the inquiry officer,
investigator, prosecutor on the payment of
money.
After this stage, the non-procedural stage of
rehabilitation, ie the part regulated by other
branches of law, begins.
In practice, the courts consider this issue in
accordance with Article 542, as the procedure
for determining the amount of damage to the
rehabilitated person and taking the necessary
measures to restore the right to request the
necessary documents, the procedure for
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Pages:
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payment of damages is not clearly defined in
the CPC.
Section 2 of Article 306 provides that the court
that issued the decision on rehabilitation shall
determine the amount of damages. On the one
hand, it makes sense to establish such a
procedure, because the court that issued the
decision on rehabilitation must fully restore the
rights. However, if the person does not live in
the area where the court ruled, he or she will
be inconvenienced, as he or she will be
required to collect information on the amount
of damages, submit it to the court, and then set
a trial date and participate in the trial.
Therefore, based on the experience of foreign
countries, it is up to the applicant to determine
the jurisdiction, ie the payment of damages to
the rehabilitated person, compensation for
non-pecuniary damage and the restoration of
other rights. ) shall be decided by a judge of the
court.
Pursuant to Article 311 of the CPC, if a person's
claim for employment, pension and housing, as
well as the return of property or payment of its
value is not satisfied or the person does not
agree with the decision, he may sue provided
that he has the right to appeal.
This raises the question of how a decision made
in criminal procedure is considered in civil
proceedings, not in appellate or cassation
proceedings.
It is also worth noting that today's practice in
this regard does not meet the requirements of
the CPC. The reason is that in most of the
criminal cases investigated, the criminal courts
are limited to explaining to the civil court that
they have only considered the issue of
compensation for property damage. The
reason is that the issue of restoration of rights
is considered in a civil court, which leads to the
restriction of the rights of the rehabilitated
person.
First, a person rehabilitated in civil proceedings
has no privilege, he is not released from the
obligation to prove. Each party must prove the
circumstances on which it bases its claims and
objections (Article 72 of the CPC).
The
peculiarity
of
the
rehabilitation
relationship between the state and the citizen
is that the causal link between illegal criminal
prosecution and compensation for damages is
of a normative nature. It does not need to be
proved and is considered determined by the
decision of the relevant law enforcement
agency recognizing the innocence of the
citizen.
In the CPC, the court, prosecutor, investigator
or inquiry officer who issued the decision to
rehabilitate is required to determine the
amount of damage and, if necessary, to
demand from the financial authorities and
departments of the Extrabudgetary Pension
Fund under the Ministry of Finance of the
Republic of Uzbekistan.
Second, the fact that the CPC imposes an
obligation on a div or court directly to
prosecute and convict an individual, restoring
his rights, is of prophylactic importance and
serves to ensure the legitimacy of future
activities;
Third, in order to participate in the civil process,
the citizen has to hire a lawyer again, gather
additional information and pay the procedural
costs, waiting for the decision to take effect
after the decision is made.
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That is, a person who has suffered both
property and moral damage as a result of illegal
or unjustified criminal prosecution must apply
to the court twice for compensation. However,
the damage (both property and moral) was
caused as a result of an illegal or unjustified
criminal prosecution.
That is, the main goal should be to apply the
most optimal and simple mechanism for the
restoration of the rights of a person who has
been illegally prosecuted and convicted.
It is advisable to establish such a procedural
order that the legally rehabilitated person does
not have to prove the amount of the right and
amount violated as a result of criminal
prosecution, and that the submission of
documents is sufficient to restore the rights
and receive appropriate payments.
However, according to Article 8 of the Law of
the Republic of Uzbekistan "On State Duties",
in civil courts the plaintiffs are exempted from
paying state duties only in disputes related to
illegal convictions, criminal prosecution,
administrative penalties that is, only those who
have been fully rehabilitated are expected to
be released. Article 303 of the CPC does not
provide for exemption of the plaintiff from
state duty on the grounds of partial
rehabilitation.
In addition, Article 312 of the CPC stipulates
that the period for claiming compensation for
property damage may be two years, and the
restoration of other rights may be within one
year from the date of receipt of the notification
explaining the procedure for restoration of the
rehabilitated person's rights. However, in the
Russian Federation, the period of limitation for
the restoration of rights is set within the time
limits established by the Civil Code. In other
words, if the source of damages is the state
budget, it is not in accordance with the rule of
Article 19 of the Constitution on the equality of
citizens and the state and the relationship
between the rights and duties of citizens and
the state.
Pursuant to Article 311 of the CPC, if a person's
claim for employment, pension and housing, as
well as the return of property or payment of its
value is not satisfied or the person does not
agree with the decision, he shall file a lawsuit.
have the right to appeal. However, in the
course of the proceedings, the person was not
released from the obligation to prove the
grounds and amount of property damage.
It should be noted that civil procedure can be a
subsidiary (in relation to criminal procedure) or
a basic method of protecting the rights of a
person who has been rehabilitated or is
seeking damages as a result of criminal
prosecution.
However, the CPC stipulates that if a person's
claim is not satisfied or the person does not
agree with the decision, he has the right to
appeal to the court with the relevant claim, ie
the civil procedure is only subsidiary.
Of course, an individual's right to appeal to a
court in the manner prescribed by the CPC is
not directly restricted, but civil courts may
return a complaint on the grounds that a
separate procedure has been established in the
CPC.
However, in some cases, the civil procedure for
the restoration of rights may be the main,
criminal procedure may not be provided:
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a)
If the rehabilitated person is unable to
recover in criminal procedure or claims a
dispute (damage to business activities, lost
profits);
b)
If the rehabilitated person claims for
compensation for moral damage caused as
a result of illegal criminal prosecution or
conviction;
That is, due to the fact that the violated rights
of rehabilitated persons belong to different
branches of law, it is impossible to regulate the
issue of restoration of rights with only one
branch of law, including criminal procedure
law. However, since rehabilitation stems from
criminal procedure, other branches of law in
this matter must be harmonized with the
norms of criminal procedural law, which
prevents conflicts in the restoration of the
right, and ultimately the confusion of the
person whose rights have already been
violated between different bodies. The reason
is that for the rehabilitated person, it does not
matter which law or legal framework resolves
the issue, for him the rights are restored
quickly, efficiently and completely.
Although the grounds for denial of the right to
rehabilitation are not clearly defined in the CPC,
they should be denied only in the following
cases:
1)
Due to the expiration of the term of
liability;
Article 64 of the Criminal Code provides for the
release of a person from liability for a crime due
to the expiration of the term of imprisonment,
the significance of which is that even if a
person has committed a crime, the state
waives the right to prosecute him. The Criminal
Code, based on its humanitarian principles,
sets deadlines for prosecuting a person who
has committed a crime. The establishment of
these periods in law saves a person from the
worry of living under the threat of criminal
prosecution for the rest of his life. On the other
hand, failure to set such time limits would have
preserved the purpose of revenge for the
crime and the purpose of the punishment in
the second part of Article 42 of the CC would
have lost its relevance.
2)
The application of an amnesty act or
pardon;
According to Article 68 of the Criminal Code, a
person who has committed a crime may be
released from liability under an amnesty act. An
amnesty act is a pardon or release from
punishment of a certain category of persons or
a person who has committed a certain
category of crime without repealing the norms
of the criminal law establishing criminal liability
for certain crimes. .
In accordance with the Regulation "On the
procedure for pardoning in the Republic of
Uzbekistan", approved by the Decree of the
President of the Republic of Uzbekistan dated
May 8, 2018 No. PF-5439, pardon is carried out
individually for a particular convict .
It is natural that the application of amnesty or
pardon does not mean that a person is
innocent of a crime, but that such persons are
not rehabilitated solely from the point of view
of release from criminal liability or punishment
from a humanitarian point of view;
1)
Death of the accused, defendant;
2)
The adoption of a law abolishing the
criminality of the act.
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It is known that according to Article 13 of the
Criminal Code, a law repealing a crime,
mitigating punishment or otherwise improving
a person's condition has retroactive effect, ie it
applies to persons who have committed a
relevant crime before the law enters into force,
including those who are serving or have
already served. , if they are still considered
convicted.
According to Article 3 of the CPC, criminal
proceedings,
inquiries,
preliminary
investigations and trials are conducted in
accordance with the legislation in force at the
time. That is, there is a conflict between the
Criminal Code and the Code of Criminal
Procedure on this issue.
Decriminalization does not mean that the state
is to blame for the fact that in a particular
historical period, social relations are protected
by criminal law.
However, there are two different approaches
to this issue. For example, OA Korneev
expressed the opinion that citizens who have
suffered as a result of excessive criminalization
of acts by the state without the basis of legal
principles can be rehabilitated after the
promulgation of a law decriminalizing the act
and decriminalization of punishment. .
N.E. Shumilo, while considering the expansion
of the basis of rehabilitation, stressed that a
person has the right to rehabilitation if the
criminal case is not terminated in time after the
expiration of the term of criminal liability or the
entry into force of the law repealing the
criminality of the act.
The Plenum of the Supreme Court of the
Russian Federation gave a similar explanation.
1)
According to Article 37 of the Criminal
Procedure Code of Kazakhstan, the
adoption of a law abolishing criminal
liability for an act committed on other
grounds is set as a basis for
rehabilitation.
2)
However, in our view, there is no basis
for recognizing and rehabilitating a
person as an unjustified criminal
prosecution because the criminal law in
force at the time the person was
prosecuted and convicted was the
basis, and all the elements of the crime
were present at the time of the
decision.
3)
However, once a law repealing the
criminality of an act has entered into
force, the prosecution and conviction
of a person will automatically reveal his
or her right to rehabilitation.
4)
the person has not reached the age
when he / she can be prosecuted at the
time
of
committing
a
socially
dangerous act (due to lag in menstrual
development).
It is known that a juvenile cannot be a subject
of a crime and must be found not guilty under
Article 83 § 2 of the CPC. However, in such a
case, no criminal case will be instituted against
him and he will not be prosecuted. This issue
concerns minors whose mental development is
retarded as a result of psychological and
psychiatric examination, even though they
have reached the age of majority, and they may
be subject to procedural coercive measures
and be prosecuted until the expert opinion is
obtained.
For example, a juvenile intentionally killed a
person, but was prosecuted under Article 83 §
2 of the CPC because he was mentally retarded
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or had not reached the age of criminal
responsibility. It is natural that a juvenile may
not be the subject of a crime because he or she
is not yet fully accountable for his or her
actions, or because he or she has committed an
act prohibited by criminal law, but it does not
make sense to rehabilitate him or her.
Otherwise, he will have to use all the rights of
the rehabilitated person to compensate for the
property damage. Therefore, recognizing him
as a rehabilitated person contradicts the
general principles of justice.
An apology from the state to an eleven-year-
old or seventeen-year-old murderer, or a
thirteen-year-old robber, and compensation
for the damage done to him goes beyond the
formula of justice and runs counter to common
sense.
However, I.Petrukhin's opinion on the
recognition of the juvenile's right to
compensation for the damage caused to him as
a result of the application of coercive
procedural measures (detention, arrest) was
applied only in cases where the investigating
authority
applied
procedural
coercive
measures knowing that he was a minor can be
found to be reasonable without .
5)
Exemption from liability in connection
with the act or loss of social danger of
the person.
6)
Some scholars have argued that in
cases of private prosecution, the
private procurator should compensate
for the material and other damage
caused in the rehabilitation procedure.
However, if a private prosecutor
knowingly gives false information
about a crime, he will be prosecuted
under Article 237 of the Criminal Code,
and if he knowingly gives false
testimony, he will be prosecuted under
Article 238 of the Criminal Code, in
which case the victim may be
compensated. Giving the victim the
right to support a private accusation
does not make the person a
responsible official with the authority
to prosecute, convict, and impose a
sentence on behalf of the state, so the
state must be held accountable for the
violation of a person's rights even if the
accusation is supported by a private
accuser.
REFERENCES
1.
Raxmonova S.M. Preliminary trial as a
form of appointment for trial.
Doctorate in Law (DSc) diss. avtoref. -T
.: MIA Academy, 2018.- p.56
2.
Kamalhodzhaev D. Rehabilitation in
the criminal process: Author's abstract.
dis .. cand. jurid. sciences. -T. 1996. -p.13
3.
V.V.Dubrovin Rehabilitation in criminal
proceedings in Russia: shortcomings of
legal regulation / V.V. Dubrovin //
Problems
and
prospects
of
jurisprudence in modern conditions /
Collection of scientific papers based on
the results of an international scientific
and practical conference. No. 4. Kazan,
2017. - From 120-123.
4.
Potetinov V.A. Criminal Procedure
institute of rehabilitation in Russian
legislation: Author's abstract. dis. cand.
jurid. sciences. Belgorod, 2018, p. 44
5.
Criminal
law.
General
section.
Textbook
for
universities.
(M.
Usmonaliev. — T., «Yangi asr avlodi»,
2010, 536 pages.
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6.
Criminal
law.
General
section.
Textbook
for
universities.
(M.
Usmonaliev. — T., «Yangi asr avlodi»,
2010, p. 536.
7.
https://lex.uz
8.
Korneev OA Institute of rehabilitation
in criminal procedure law of Russia:
Author. dis. Cand. jurid. sciences.
Chelyabinsk, 2005.
9.
Shumilo N.E. Development of the
institute of rehabilitation in the
criminal procedure legislation of Russia
// Materials international, scientific.
practical Conf., dedicated to the
adoption
of
the
new
Criminal
Procedure Code of the Russian
Federation. M., 2002.
10.
Resolution of the Plenum of the
Supreme Court of the Russian
Federation of November 29, 2011 N 17
"On the practice of applying by courts
the norms of Chapter 18 of the Criminal
Procedure Code of the Russian
Federation regulating rehabilitation in
criminal proceedings.
11.
Bezlepkin B.T. The criminal procedure
of Russia. M. Welby, 2004.p. 294.
12.
Petrukhin I.L. Acquittal verdict and the
right to rehabilitation: monograph.
Monograph. –M. Prospectus, 2009
p.68
