The USA Journals Volume 03 Issue 05-2021
29
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
May 17, 2021 |
Pages:
29-32
https://doi.org/10.37547/tajpslc/Volume03Issue05-05
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2021:
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‘
ABSTRACT
The article analyzes the problems of the initial stage of criminal proceedings caused by changes in the
criminal procedure legislation. Special attention is paid to the improvement of the rules governing the
procedure for appealing to the court against the actions and omissions of officials to initiate a criminal
case or refusal to initiate it.
KEYWORDS
Criminal procedure, appeal, pre-trial proceedings, initiation of a criminal case, verification of a crime
report, interrogator, investigator, prosecutor's supervision, preliminary inquiry, judicial control.
INTRODUCTION
One of the main tasks of criminal procedural
legislation is to provide guarantees for the
protection of the rights and legitimate
interests
of
participants
in
criminal
proceedings.
Establishment Of Judicial Control Over The Initiation Of A
Criminal Proceeding
Khudaybergenov Baxram Kuanishbaevich
Teacher At The Department Of Criminal Procedural Law Of Tashkent State University Of Law,
Tashkent, Uzbekistan
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
The USA Journals Volume 03 Issue 05-2021
30
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
May 17, 2021 |
Pages:
29-32
https://doi.org/10.37547/tajpslc/Volume03Issue05-05
I
MPACT
F
ACTOR
2021:
5.
952
The court in criminal proceedings is endowed
with significant powers in terms of its scope
and consequences to control and lawfulness of
the actions of the preliminary investigation
bodies at the stage of initiating a criminal case.
The criminal procedure legislation provides
that judicial control is carried out by giving the
court
permission
to
perform
several
procedural actions that may violate or restrict
the constitutional rights and freedoms of
citizens.
Relations between participants in criminal
proceedings at the stage of initiation of a
criminal case are often of a conflict nature. The
legislator provides that in the event of
procedural contradictions, persons who do not
have authority have the right to apply to the
court for the protection of their rights and
interests. According to article 9 of the Law of
the Republic of Uzbekistan "On Courts":
citizens of the Republic of Uzbekistan, foreign
citizens and stateless persons have the right to
judicial protection from any illegal actions
(decisions) of state and other bodies, officials,
as well as from encroachments on life and
health, honor and dignity, personal freedom
and property, other rights and freedoms.
Enterprises, institutions and organizations also
have the right to judicial protection [1].
The right to appeal against the procedural
actions and decisions of the prosecutor,
investigator and inquirer is based on the
constitutional guarantee of judicial protection
of the rights and freedoms of the individual.
Such a right is important for the participants in
the process to defend their interests.
An analysis of the provisions of articles 338,
358, 38117 of the Criminal Procedure Code of
the Republic of Uzbekistan showed that
actions to initiate or refuse it can be appealed
to the head of the div of inquiry, the head of
the investigative unit, as well as to the
prosecutor. In the Criminal Procedure Code of
the Republic of Uzbekistan, there is no rule
defining the procedure for appealing a decision
to initiate a criminal case or refusing to initiate
it in court.
Thus, judicial control at the pre-trial stages of
criminal proceedings should be considered one
of the forms of manifestation of judicial power.
Investigative and judicial practice shows that
violations at the stage of initiating a criminal
case in the activities of the preliminary
investigation bodies are very common.
A comparative analysis of this provision has
shown that the Criminal Procedural Code of the
Russian Federation [2] and the Republic of
Kazakhstan [3] establishes norms according to
which actions and omissions, as well as
decisions taken by the inquirer, investigator
and prosecutor can be appealed in court.
In accordance with part 1 of Article 99 of the
Criminal Procedural Code of the Republic of
Kazakhstan,
"Participants
in
criminal
proceedings have the right to apply to the
person conducting the pre-trial investigation,
the prosecutor, the judge (to the court) with
petitions for the production of procedural
actions or the adoption of procedural decisions
to establish the circumstances that are
important in the course of the criminal process,
to ensure the rights and legitimate interests of
the person who filed the petition, or the person
represented by them. The application of
petitions is possible at any stage of the
process. The person who filed the application
must indicate in order to establish what
circumstances he/she is requesting to take any
The USA Journals Volume 03 Issue 05-2021
31
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
May 17, 2021 |
Pages:
29-32
https://doi.org/10.37547/tajpslc/Volume03Issue05-05
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2021:
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952
action or make a decision. Written petitions are
attached to the materials of the criminal case,
oral ones are entered in the protocol of the
investigative action or the court session".
According to art. 125 of Criminal Procedural
Code of the Russian Federation: "Decisions of
the div of inquiry, the inquirer, the
investigator, the head of the investigative div
on refusal to initiate a criminal case, on
termination of the criminal case, as well as
other actions (inaction) and decisions of the
inquirer, the head of the investigation unit, the
head of the inquiry div, the investigator, the
head of the investigative div and the
prosecutor, which are capable of causing
damage to the constitutional rights and
freedoms
of
participants
in
criminal
proceedings or obstruct citizens access to
justice, may be appealed to the district court at
the place of commission of the act, containing
signs of a crime.
Based on the results of the consideration of the
complaint, the judge makes one of the
following decisions:
1)
On the recognition of the action
(inaction) or decision of the relevant
official as illegal or unjustified and on
its obligation to eliminate the violation
committed;
2)
About leaving the complaint without
satisfaction.
It should be noted that the decisions of the
inquirer, investigator, prosecutor on the
initiation or refusal to initiate a criminal case, as
well as other actions (inaction) of officials
authorized to conduct a pre-investigation
check, inquiry and preliminary investigation,
which may damage the constitutional rights
and freedoms of participants in criminal
proceedings or hinder citizens access to justice,
may be appealed in court at the place of
commission of an act containing signs of a
crime.
CONCLUSION
In addition, it should be established that, based
on the results of the consideration of the
complaint, the court must make one of the
following decisions:
1)
On the recognition of the action
(inaction) or decision of the relevant
official as illegal or unjustified and on
its obligation to eliminate the violation
committed;
2)
About leaving the complaint without
satisfaction.
Having recognized the refusal to initiate a
criminal case as illegal or unfounded, the judge
must make an appropriate decision and send it
accordingly for execution to the head of the
investigative div or the head of the div of
inquiry, as well as notify the applicant about it.
Based on the studied issue, we would like to
draw attention to another point regarding the
development of a mechanism for judicial
supervision of pre-trial proceedings, and more
specifically to the UN Recommendations on
"Judicial control at the stage of pre-trial
proceedings in the criminal process of
Uzbekistan" [4].
These recommendations address the issue of
improving the institution of judicial supervision
of
pre-trial
proceedings.
Also,
the
recommendations focus on the introduction of
a new procedural figure. In some post-Soviet
countries (Armenia, Georgia, Kazakhstan,
The USA Journals Volume 03 Issue 05-2021
32
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
May 17, 2021 |
Pages:
29-32
https://doi.org/10.37547/tajpslc/Volume03Issue05-05
I
MPACT
F
ACTOR
2021:
5.
952
Kyrgyzstan, Moldova, Ukraine) this procedural
figure is called the investigating judge or its
equivalent, whose role is to ensure judicial
control over the legality of pre-trial
proceedings.
The
introduction
of
this
procedural figure can contribute to the
observance of the principle of adversarial
parties at the pre-trial stage of criminal
proceedings.
REFERENCES
1.
https://www.lex.uz/acts/68521
2.
http://www.consultant.ru/document/cons
_doc_LAW_34481/a77db61482195243e34e
aab6db425fe8c0acc74a/
3.
https://online.zakon.kz/document/?doc_id
=31575852#pos=121;-108
4.
https://www.unodc.org/documents/centra
lasia//2020/judicial_oversight_24.03.20.pdf
