The USA Journals Volume 03 Issue 04-2021
157
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
157-164
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-24
I
MPACT
F
ACTOR
2021:
5.
952
‘
ABSTRACT
The article analyzes the norms of the Criminal Procedure Code that use the term “procedural actions”,
identifies existing problems and shortcomings related to the content of this term. The author
developed a definition of the concept of “procedural actions”. Proposals and recommendations are
given for their reflection in the current Criminal Procedure Code.
KEYWORDS
Procedural actions, pre-investigation check, inquiries, investigative actions, judicial actions.
INTRODUCTION
Persons directly and indirectly involved in
criminal proceedings, ordinary citizens or
employees who apply criminal procedural
norms in the course of office work, mainly use
the term investigative actions.
Indeed, the stage of pre-trial work is the
essence of the criminal procedure. Therefore,
Analysis Of The Norms Of The Criminal Procedure Code That
Use The Term "Procedural Actions": Problem And Solution
Kadirov F.F.
Senior Investigator Of Internal Affairs Bodies Yangikhayat District Of Tashkent City,
Uzbekistan
Journal
Website:
http://usajournalshub.c
om/index,php/tajpslc
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 04-2021
158
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
157-164
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-24
I
MPACT
F
ACTOR
2021:
5.
952
the actions carried out at this stage are called
investigative actions, based on the evidence
collected during their implementation, a
conclusion is made about the presence or
absence of elements of a crime. The terms of
investigation and judicial actions, introduced
into the Criminal Procedure Code, adopted in
1959, also serve as a basis for it. In particular,
Article 1131 of the Criminal Procedure Code
defines the time frame for conducting
investigative actions, or Article 50 establishes
protocols
of
investigation
and
court
proceedings as a source of evidence, or Article
196 provides for a procedure for appealing
against the actions of a prosecutor conducting
a
preliminary
investigation
or
certain
investigative actions. Of course, such an
approach
of
the
legislator
logically
corresponded to the structure of the Criminal
Procedure Code and the content of the norms.
However, actions related to the stage of the
preliminary investigation, as well as actions
that can be taken by a defense lawyer, are not
regulated by articles of the Criminal Procedure
Code.
In other words, while the legislative div
focused on the grounds and timing of the
initiation of a criminal case, as well as refusal
and appeal, it overlooked the scope of actions
that must be taken at the stage of initiation of
a criminal case and the procedure for their
commission. Besides, when determining the
procedural status of a defender, no mention is
made of the procedure for performing the
actions taken by him to protect his client.
Concerning actions related to operational-
search activities, the introduction of a
normative norm was considered completely
contrary to the criminal policy pursued at that
time. However, the actions mentioned above
are among the actions that represent the
criminal justice process. An attempt was made
to eliminate this obvious flaw in the Criminal
Procedure Code of 1994, as a result of which a
new term “procedural actions” was introduced
into the country’s criminal procedural
legislation.
On the one hand, this innovation being
evaluated positively, first of all, calls on the
legislator to regulate the actions to be taken at
the stage of initiating a criminal case, the
actions of a lawyer related to the defense and
actions
of
operational-search
content.
Secondly, along with their regulation, he also
defined their procedural position. But the term
procedural action was introduced into the
criminal procedure legislation and, according
to E.G. Lukyanova [4], it also caused some
problematic situations.
The first problematic situation
is the need for
clarifying
the
proportionality
between
investigative and judicial actions in terms of the
content of the procedural actions.
Taking into account the requirements of Article
27 of the Criminal Procedure Code, this article
determines the procedure for the legislator to
appeal against a procedural action or a decision
of an inquiry officer, investigator, prosecutor,
judge and court. In turn, if we talk about Article
150 of the Criminal Procedure Code concerning
procedural actions related to the exhumation
of a corpse, including attempts to examine the
corpse, identify it and take samples for
examination. Thus, the legislature, while
offering
a
broader
understanding
of
procedural
actions,
emphasized
that
investigative actions are also expressed by
their procedural nature.
The USA Journals Volume 03 Issue 04-2021
159
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
157-164
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-24
I
MPACT
F
ACTOR
2021:
5.
952
Yu.S. Vashchenko describes procedural actions
in legislation and uncertainty of similar terms
as “an abstract place”. Taking into account
that laws are used not only by courts or
government officials, but also by citizens, he
proposes not to use abstract terms and rules
and that they should be approached in terms of
“factual accuracy” and “appropriate clarity”
[1].
Consequently, when it comes to procedural,
investigative and judicial actions, it would not
be very correct to assume proportionality
between them. Because it becomes clear that
the actions taken before and during the trial
are external and internal. By their appearance,
the actions taken during the pre-investigation
check can be called the actions of the pre-
investigation check, the actions taken during
the inquiry can be called the actions of the
inquiry, the actions taken during the
preliminary investigation can be called the
investigative actions, the actions taken in the
trial, called judicial actions, but it is difficult to
immediately determine to which process these
procedural actions belong.
According to the legislator, procedural actions
are a manifestation of all external actions that
are performed before the investigation,
preliminary investigation and trial. This can be
seen in the amendments and additions made
to the Criminal Procedure Code in recent years.
In particular, according to part 4 of Article 392
of the Criminal Procedure Code, an official of a
div conducting a pre-investigation check or
operational-search activity is entrusted with
the implementation of certain procedural
actions and operational-search activities in the
case and assist the investigator, inquirer in the
performance of procedural actions.
Part 5 of the norm provides that the official of
the div conducting the pre-investigation
check, when performing the pre-investigation
check, as well as when executing the
instructions of the investigator, must perform
procedural actions and make decisions under
the rules established by this Code.
Section 4 of Article 91 emphasizes that a survey
of the place of an incident, a search,
verification of evidence at the place, an
investigative experiment is a procedural
action. However, Articles 911-914 provide for
the conduction of investigative actions
through
a
videoconference,
and
not
procedural actions. The analysis of the norms
of the Criminal Procedure Code gives grounds
to conclude that the legislator used the term
“investigative action” only if he intended to
emphasize that this action is provided for in
part 1 of Article 87 of the Criminal Procedure
Code.
If to proceed from the internal form of
procedural, investigative and judicial actions,
then we can notice that the actions regulated
by the articles of the Criminal Procedure Code
have the same internal order in content, that is,
the grounds and order of their commission are
the same. Usually, they differ from each other
in the subject of their commission and some
design features. More precisely, if the
investigator decides to commit certain
procedural actions, then the court is satisfied
only by making a decision. This shows that
procedural actions are not the object of
determining
the
proportionality
of
investigative and judicial actions from the point
of view of external and internal appearance.
Because, investigative and judicial actions
differ not in content, but the stage of their
implementation.
The USA Journals Volume 03 Issue 04-2021
160
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
157-164
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-24
I
MPACT
F
ACTOR
2021:
5.
952
The second problematic situation
. Pre-
investigation check, actions performed during
the trial, inquest, preliminary investigation,
trial or procedural actions carried out with the
aim of quickly and completely detecting
crimes, punishing a certain person who
committed a crime, as well as refusing to
punish and convict an innocent person,
disclosing the guilty are not cases that attract
the attention of the practitioner. Maybe that’s
why
B.Kh.
Pulatov
understands
that
investigative actions are also carried out during
the judicial investigation [7].
According to the content of Part 1 of Article 87
of the Criminal Procedure Code, actions taken
during the preliminary investigation are called
investigative actions, and actions taken during
the trial are called judicial actions. However,
the pre-trial stage is not limited to the
preliminary investigation, but also includes a
pre-investigation check and stages of inquiry. If
the legislator, according to the Criminal
Procedure Code of 1959, based on the above-
mentioned logic, names the actions to be taken
during the inquiry as actions of inquiry (in
particular, paragraph 3 of Article 100 of the
Criminal Procedure Code states, “after the
inquiry officer considers that the investigation
has been completed ...” or paragraph 2 of
Article 105 states that “inquest in cases in
which a preliminary investigation is not
mandatory must end with the formation of an
indictment and the termination of the case”),
then the actions were taken at the preliminary
investigation stage should logically be called a
preliminary investigation. However, in part 2 of
Article 329 of the current Criminal Procedure
Code, it is noted that the legislative div,
recognizing the actions taken before the
initiation of the case, thereby prohibited the
conduct of other investigative actions.
The texts of these articles were formed based
on the amendments and additions to the
Criminal Procedure Code in different periods,
as a result of which the logic of assigning
names to procedural actions performed at
different stages of criminal proceedings was
violated. Besides, the text cites the concept of
investigative actions as a generalizing concept
of
procedural
actions,
requiring
that
investigative actions be given the status of
procedural actions and that the same situation
becomes one of the factors causing the
aforementioned problem situations.
It is known that judicial actions are carried out
based on the principles of investigating
criminal cases in a collegial and individual
manner, the openness of criminal cases in
court, public participation in the consideration
of criminal cases, direct and oral examination
of evidence, as well as there is no need to draw
up a separate protocol for each action taken.
If based on this logic of the legislative div, we
understand investigative and judicial actions
from the point of view of content as separate
actions, then it is not clear that the
composition of both actions constitutes the
same system of actions.
In fact, since these are different actions, they
must also consist of a certain system of actions.
This once again confirms our conclusion that
the above investigative and judicial actions
differ not in their internal structure, but their
appearance.
However, according to I.L. Petrukhin, the
investigation and all other procedural actions
can be carried out only after the initiation of a
criminal case. In particular, coercive measures
of the criminal procedure (search, seizure of
postal telegrams) cannot be applied before the
The USA Journals Volume 03 Issue 04-2021
161
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
157-164
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-24
I
MPACT
F
ACTOR
2021:
5.
952
initiation of a criminal case. But, the initiation
of a criminal case is based on the actions taken
before the initiation of a criminal case, and,
therefore, this stage is considered the stage of
pre-investigation verification.
As a rule, the necessary, and in some cases
sufficient materials are collected at the stage
of pre-investigation verification [5; (A.
Panyukov also expressed his opinion on this
issue)]. According to the scientist, these
materials have a non-procedural form and only
after the initiation of a criminal case and
subsequent procedural actions, as a result,
they acquire a procedural form. Perhaps, on
this basis, the current practice has turned the
pre-investigation check into a non-procedural
form of inquiry and preliminary investigation
[6].
A.N. Khalikov, who researched to optimize the
pre-trial process, drew attention to the receipt
of information that has no evidentiary value
during the pre-trial investigation to determine
the quality and dynamics of evidence collected
during the pre-trial stage. In his opinion, if
today’s criminal procedure legislation leaves
the stage of initiating a criminal case without
supervision, then the actions that must be
taken before the initiation of a criminal case
(search, seizure, exhumation, etc.) will be
limited to certain procedural actions necessary
for search for the culprit and proof of his guilt.
This situation not only impedes the timely
disclosure of the crime, the identification of the
perpetrator and the proof of his guilt, but leads
to some gross violations, that is, the rejection
or initiation of an unfounded criminal case [10].
Besides, this leads to a gross violation of the
rules regarding the stage of initiation of a
criminal case to comply with the provisions of
the criminal procedure legislation, in particular,
the timing of the pre-investigation check. The
reason is that the scope of the procedural
actions that can be performed at the stage of
initiating a criminal case is limited, and the
content of the preliminary investigation
consists of the examination and verification of
documents, as well as operational-search
measures carried out by a specialist. This
makes it urgent to enhance the capabilities of
the stage of initiating a criminal case. It should
also be noted that the legislation of many
foreign countries does not provide for the
stages of initiating a criminal case at all, and
therefore the officials conducting the pre-
investigation check begin to collect evidentiary
information as soon as they receive
information about the crime (Austria,
Germany, the United States and others).
Indeed, it is difficult to recognize the stage of
the preliminary investigation as a separate
stage, similar to the stage of preliminary
investigation in terms of its procedural status.
Because, although the scope of procedural
actions at this stage is limited, according to the
observations of the experts interviewed,
almost all the investigative actions listed in
Article 87 of the Criminal Procedure Code are
carried out at the stage of initiating a criminal
case.
It can be seen that the legislative div defined
the stage of initiating a criminal case as a
separate stage, but did not regulate the
collection of documents collected at this stage,
in particular, the request for additional
documents and comments, detention, an
inspection of the scene based on their
procedural status. This can be seen from the
fact that the examination carried out during
the preliminary investigation, inspection of the
place of the incident, the rules for conducting
The USA Journals Volume 03 Issue 04-2021
162
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
157-164
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-24
I
MPACT
F
ACTOR
2021:
5.
952
investigative actions were applied at the stage
of initiating a criminal case, as well as you can
also see this when a case arises of the need to
collect, study and cover the process of
assessing evidence.
Although the requirements of the Criminal
Procedure Code provide for a request for
additional documents and comments in terms
of the procedural form, the conditions,
sequence
and
procedure
for
their
implementation are not described in detail in
the code. Naturally, the inclusion of actions
that do not have a procedural form in the list of
procedural actions casts doubt on the
recognition of information obtained as a result
of their transmission as evidence.
A similar situation can be traced to the
existence of problems with the determination
of the procedural status of a defender in the
criminal procedure legislation. Article 53 of the
Criminal Procedure Code provides that the
defense lawyer is a participant in the proof
process and must take certain actions to
protect his client, which can be initiated by the
defense lawyer, but the scope of these actions
is limited to interrogation, obtaining written
explanations,
characteristics
and
other
documents.
From this point of view, the legislative div
provides that these actions can be performed
by the defense attorney, emphasizing that the
adversarial principle can be applied during pre-
investigation,
inquiry
and
preliminary
investigation, but the conditions, sequence
and procedural order of such actions are not
regulated by other articles of the Criminal
Procedure Code. This leads to several
problematic assumptions.
Firstly
, the interrogation of the defense,
obtaining a written explanation and a request
for a certificate, characterization and other
documents
include
such
actions
as
interrogation,
arrest, consideration
and
presentation provided for by the Criminal
Procedure Code.
Secondly
, the defense attorney cannot
conduct a “defense lawyer’s investigation”
simultaneously with the right to interrogate,
receive a written explanation and send a
request for a certificate, characterization and
other documents. Because the procedural
form of the interrogation, the written
explanatory note and the request of the
defense
attorney
for
a
certificate,
characterization and other documents are not
defined in the Criminal Procedure Code. And
here the question arises, do the documents
that are requested on the initiative of the
defense attorney and presented to the inquiry
officer and the investigator serve as evidence?
According to S.A. Shafer, all certificates,
characteristics and other documents related to
the investigation of a criminal case have a
procedural form, since they are carried out
within the framework of the law, and the
evidence obtained as a result of their transfer
must be included in the criminal case as
evidence [11]. However, M.S. Strogovich and
I.L. Petrukhin believe that evidence can be
considered as evidence only when it is
formalized in a procedural order [7; 9].
According to procedural scholars, actions
taken in the course of criminal proceedings can
be procedural or non-procedural, depending
on the procedural formalities, as well as on the
probative value of the materials collected as a
result of the actions, and on whether the
actions were committed by persons with
The USA Journals Volume 03 Issue 04-2021
163
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
157-164
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-24
I
MPACT
F
ACTOR
2021:
5.
952
procedural
powers.
Such
an
artificial
classification, which is not justified from the
point of view of criminal procedure law,
hinders the performance of the functions of
criminal procedure legislation. Since, in their
opinion, the data collected as a result of “non-
procedural”, [2; 3] actions are not eligible for
inclusion in the evidence base. The most
dangerous aspect of this situation is that the
activities of the defense and operational-
search bodies in the criminal court process are
declared non-procedural and lead to their
exclusion from the scope of the procedural
process. However, part 1 of Article 87 of the
Criminal Procedure Code notes that evidence is
collected not only during the investigation and
trial, but also as a result of operational-search
activities.
It is interesting that, even though the term
procedural actions are reflected in the norms
of the Criminal Procedure Code, procedural
actions in the literature still imply investigative
actions.
Most scholars interpret investigative actions in
a broad sense, including almost all of the
investigator’s
procedural
actions,
the
procedural decisions he or she makes, and
even
organizational
support
and
law
enforcement processes. Although the purpose
of these actions is not to collect and
consolidate evidence, but to ensure the rights
of the participants in the process, to provide
the
necessary
conditions
during
the
investigation (for example, to announce the
defendant about the completion of the
preliminary investigation and explain to
him/her the right to familiarize himself with the
case
materials),
since
a
preliminary
investigation has been carried out, they should
also be called investigative actions. Of course,
they are not included in the list of actions that
have
evidentiary
value,
but
their
implementation ensures the conduction of a
criminal case at the stage of pre-trial
investigation. Therefore, they can be included
in the list of
supporting or auxiliary activities
.
If to take into account that the pre-trial stage
of the case, in addition to the stage of the
preliminary investigation, consists of the
stages
of
pre-investigation
verification,
initiation of a criminal case and inquiry, in this
case, the actions taken during the preliminary
investigation do not cover the pre-trial stages
in terms of internal and external forms of
actions. And this defines the “procedural
action” reflected in the current Criminal
Procedure Code, which does not depend on
the actions taken at the stage of pre-trial
investigation, but covers all types (based on
evidence, confirming) actions that represent
the content of pre-investigation check,
operational
search,
inquiry,
preliminary
investigation and judicial activity, defines the
concept of “procedural actions”, reflected in
the current Criminal Procedure Code in the
following context and justifies the expediency
of its use as a single criterion:
“Procedural
action
is
a
pre-investigation
check,
operational-search activity, as well as inquiry,
preliminary
investigation
and
judicial
proceedings by an inquiry officer, an
investigator, a prosecutor, a court (judge) and
a defense lawyer in pre-trial proceedings and
court proceedings, provided for by the norms
of criminal procedure law, which is an
appropriate procedural action, as well as an
additional document that has fact technical
value or supporting recommendation that is
used during the trial”.
The USA Journals Volume 03 Issue 04-2021
164
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
157-164
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-24
I
MPACT
F
ACTOR
2021:
5.
952
In conclusion, it can be noted that the
recognition of the above definition in a
separate article in the first paragraph of the
general part of the Criminal Procedure Code
limits the procedural and non-procedural
nature of the activities of the inquiry officer,
investigator, prosecutor, court (judge) and
defense lawyer.
REFERENCES
1.
Vashchenko
Yu.S.
On
the
communicative
accuracy
of
the
legislative text in lawmaking // Russian
Justice.
M., 2006. No. 4. - Р. 58.
2.
Criminal Procedure B.A. Edited by
Mirensky. – T., 2004. – Р. 218.
3.
Criminology II (Textbook for university
students).
Under
the
general
editorship
of
G.A.
Abdumajdov.
"Adolat" – T., 2003. – Р. 21.
4.
Lukyanova
E.G.
Trends
in
the
development of procedural legislation
in the light of the general theory and
law // State and Law.
M., 2003. No. 2.
– Р. 105.
5.
Panyukov
A.
Procedural
activity
without initiating a criminal case //
Russian Justice.
2003. No. 5, - Р. 51-53.
6.
Petrukhin I.L. Initiation of a criminal
case under the current Code of Criminal
Procedure // State and Law.
2005.
No.1. – Р. 64.
7.
Petrukhin I.L. Theoretical foundations
of the reform of the criminal process in
Russia.
‒
M., 2004. – Р. 14;
8.
Pulatov B.H. Importance and prospects
of judicial and legal reforms in
Uzbekistan // Judicial and legal reforms
in the Republic of Uzbekistan: current
status, problems and solutions /
Republican
scientific-practical
conference. Tashkent, "Academy"
2008. – Р. 40-44.
9.
Strogovich M.S. The course of the
Soviet criminal process. – T.1, - M., 1968.
Р. 302.
10.
Halikov A.N. Issues of pre-trial
proceedings // Russian Justice.
M., 2008.
No. 9, - Р. 50.
11.
Sheifer S.A. Where is the Russian court
proceeding? (reflections on the vectors
of development of criminal procedure
‒
No.1. – P. 67.
