The USA Journals Volume 03 Issue 04-2021
194
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
194-199
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-30
I
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‘
ABSTRACT
The purpose of writing this article is to show that in practice the law enforcement agencies conducting
pre-trial investigation and preliminary investigation do not strictly follow the detention procedure
established by the Code of Criminal Procedure, although the grounds for detaining detainees are not
sufficient. by deciding to detain the accused and allegedly facilitating the preliminary investigation
through this "method", ie the violation of the rights and interests of the suspects and accused persons
involved in the criminal proceedings as a result of the discovery of the crime and the use of suspects
as a means of proving guilt being put. The main purpose of writing this article is to prevent these cases
and to amend the legislation.
KEYWORDS
Detention, pre-trial investigation, preliminary investigation, suspect, accused, defendant, evidence.
INTRODUCTION
In his speech on the occasion of the 27th
anniversary of the Constitution of the Republic
of Uzbekistan, President Sh.M.Mirziyoyev said
that the effectiveness of any democratic
reforms, the main guarantee of peace and
development is directly related to the
Constitution and the rule of law, as well as
human rights and freedoms. stressed that
Practical Problems Of Implementation Of Arrests
Ulmas Sharipov
Lawyer Of The Firm Of “Law Protect”, Tashkent, 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
195
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
194-199
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-30
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respect for human dignity is an integral part of
the open, free and just society we are building
[1].
In recent years, large-scale work has been
carried out in our country to ensure reliable
protection of the rights and freedoms of
citizens,
first
of
all,
from
criminal
encroachment, as well as to prevent the
humiliation of their honor and dignity, the
restriction of their legitimate interests.
Judicial and legal reforms are based on
constitutional principles such as the rule of law,
equality of citizens before the law, the
presumption of humanity, justice and
innocence.
On the implementation of the Action Strategy
for the five priority areas of development of
the Republic of Uzbekistan in 2017-2021, a
number of normative and legal acts aimed at
ensuring true independence and freedom of
the judiciary, improving the quality and
transparency of justice, expanding the use of
habeas corpus.
However, in criminal proceedings, ie pre-
investigation, which is a stage of criminal
proceedings, and during the preliminary
investigation, the rights and freedoms of
persons involved in criminal proceedings are
violated, including unreasonable and illegal
coercive measures against them to solve
crimes and prove the guilt of suspects and
accused The use of outdated investigative
methods, such as the use of, is very common.
According to Article 19 of the Constitution of
the Republic of Uzbekistan, the rights and
freedoms of citizens enshrined in the
Constitution and laws are inviolable, and no
one has the right to deprive or restrict them
without a court decision [2].
The rights of citizens provided for in this
Article, provided for in the Constitution of the
Republic of Uzbekistan, are divided into such
types as personal rights and freedoms, political
rights and socio-economic rights.
This article refers to citizens, ie citizens of the
Republic of Uzbekistan, foreign citizens
residing in the Republic of Uzbekistan and
stateless persons.
Citizens of the Republic of Uzbekistan, foreign
citizens and stateless persons have and enjoy
the personal rights and freedoms provided for
in our Constitution, as well as socio-economic
rights.
Only citizens of the Republic of Uzbekistan may
enjoy political rights and freedoms.
Our Constitution states that “No one has the
right to deprive or restrict the rights of citizens
enshrined in our Constitution without a court
decision [3].” The strict norm established by
the investigation, preliminary investigation and
courts prior to the investigation, which is
considered a participant in the criminal
proceedings, must always be followed without
deviation.
MATERIALS AND METHODS
Preventing any deviation from this norm,
taking strict action against the officials who
committed this incident, and preventing such
incidents are important in ensuring that the
rights and freedoms of citizens are not
violated.
The rights of citizens enshrined in our
constitution may be restricted until the court's
decision, that is, during the pre-trial
investigation and preliminary investigation.
The USA Journals Volume 03 Issue 04-2021
196
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
194-199
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-30
I
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F
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2021:
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952
If persons involved in criminal proceedings do
not voluntarily exercise their rights and
obligations, they may be subject to coercive
procedural measures. Because coercive
measures are an important procedural action,
they are reflected in the restriction or
temporary deprivation of personal, property
and other subjective rights of citizens.
According to Article 236 of the Code of Criminal
Procedure of the Republic of Uzbekistan, the
precautionary measure is to prevent the
accused, the defendant from evading the
inquiry, preliminary investigation and court;
prevention of his further criminal activity; to
prevent his attempts to obstruct the truth of
the case; used to ensure the execution of the
sentence.
The reasonable assumption that the accused
may be absconding from the inquiry,
preliminary investigation and trial due to the
danger of the crime provided for in the fourth
and fifth paragraphs of Article 15 of the
Criminal Code may also be grounds for
choosing a measure of restraint in the form of
detention.
Precautions should be taken against persons
awaiting placement in a medical institution for
examination, as well as those who have been
declared mentally ill or have become mentally
ill after the crime, in order to prevent their
concealment and other socially dangerous
acts, as well as to enforce court rulings on
medical coercion. can be applied.
As a coercive procedural measure, a
precautionary measure shall be applied to an
accused or defendant who is a participant in
criminal proceedings in accordance with Article
236 of the Code of Criminal Procedure for the
following purposes:
In order to prevent the defendant and the
defendant from evading the preliminary
investigation and the court;
In order to prevent further criminal activity
of the accused and defendant;
In order to prevent attempts by the
accused and the defendant to establish the
truth of the case;
In order to ensure the execution of the
sentence [4].
In some cases, the measure of restraint may be
applied to the suspect conditionally, ie in
accordance with Article 226 (3) of the Criminal
Procedure Code of the Republic of Uzbekistan.
In this case, the accused must be charged
within ten days from the date of his arrest.
Otherwise, the precautionary measure is
revoked and the person is released from
custody or house arrest, and the bail is
returned to the mortgagor. After the initiation
of a criminal case and during the entire period
of detention, the inquiry officer and
investigator to whom the case relates may
conduct investigative actions within their
competence to determine the circumstances
of the crime, to verify the validity of the
detention [4].
That is, if one of the precautionary measures in
the form of arrest or bail is applied to the
suspect,
the
suspect,
investigator
or
prosecutor
conducting
the
preliminary
investigation against the suspect must be
charged within 10 days from the date of
application of the measure of restraint. If the
guilt is not announced, the pre-trial detention
or bail will be revoked and the bail will be
returned to the mortgagor.
The first part of Article 236 of the Code of
Criminal Procedure sets out the grounds for
the application of a precautionary measure. In
The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
194-199
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-30
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2021:
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practice, it is very common to cite these
grounds for the application of precautionary
measures in the form of detention.
According to the second part of Article 236 of
the Code of Criminal Procedure of the Republic
of Uzbekistan, a reasonable presumption that
the accused may hide from the inquiry,
preliminary investigation and court due to the
danger of the crime provided for in the fourth
and fifth parts of Article 15 of the Criminal
Code. may be the basis for selection.
RESULTS AND DISCUSSION
According to Article 15 of the Criminal Code of
the Republic of Uzbekistan, crimes are
characterized by: their nature and level of
social danger: social risk is not high; not too
heavy; heavy; divided into very serious crimes.
Minor socially dangerous crimes include
intentional crimes punishable by imprisonment
for a term not exceeding three years, as well as
crimes
committed
by
negligence
and
punishable by imprisonment for a term not
exceeding five years.
Minor offenses include intentional offenses
punishable by imprisonment for a term
exceeding three years but not exceeding five
years, as well as offenses committed by
negligence and punishable by imprisonment
for a term exceeding five years.
Serious crimes include crimes committed
intentionally and punishable by imprisonment
for a term not exceeding five years, but not
more than ten years, as a severe punishment
under the law.
Serious crimes include those committed
intentionally
and
are
punishable
by
imprisonment for a term of more than ten
years or life imprisonment.
Pursuant to Part 2 of Article 236 of the Code of
Criminal Procedure, the accused or defendant
falls into the category of serious or very serious
crimes according to the nature of the crime or
one of the crimes and the degree of social
danger, and the accused if there is a reasonable
presumption that he may be absconding from
inquiry, preliminary investigation and trial, he
may be remanded in custody.
Article 236 (3) of the Code of Criminal
Procedure provides that “precautionary
measures shall be taken against persons
awaiting hospitalization for examination, as
well as those who have been declared mentally
ill or have become mentally ill after the crime,
to prevent their hiding and other socially
dangerous acts. may be applied in order to
ensure the execution of a court ruling on the
application of a coercive measure in the form
of
In this norm, the following three categories are
expected to be placed in the medical
institution for examination (1); 7 precautionary
measures provided for in Article 237 of the
Code of Criminal Procedure for persons who
have been declared mentally retarded (2) and
who have become mentally ill after the
commission of a crime - a receipt of
appropriate conduct (1); personal guarantee,
public association or community guarantee (2);
bail (3); house arrest (4); arrest (5); submission
of juveniles for supervision (6); one of the
precautionary measures, such as command
surveillance (7), may be applied to the conduct
of a serviceman.
In addition, Article 236 of the Code of Criminal
Procedure stipulates that a measure of
The USA Journals Volume 03 Issue 04-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
April 30, 2021 |
Pages:
194-199
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-30
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restraint in the form of detention may be
applied to a person convicted of a felony or
aggravated felony and having a reasonable
presumption that he may be absconding from
the preliminary investigation and court. Arrest
as a precautionary measure under Article 1 of
the Criminal Code for intentional crimes
punishable by imprisonment for more than
three years and for crimes committed as a
result
of
negligence,
punishable
by
imprisonment for more than five years under
the Criminal Code. applied on[4].
Part 2 of Article 15 of the Criminal Code of the
Republic
of
Uzbekistan
provides
for
imprisonment for a term of more than three
years, but not more than five years, as well as
negligence for a term of more than five years.
the offenses committed are defined as less
serious offenses.
That is, while Article 236 of the Code of Criminal
Procedure applies to persons accused of
committing a serious or very serious crime and
there is a reasonable presumption that they
may be absconding from the preliminary
investigation and trial, Article 242 of the Code
of Criminal Procedure commits a less serious
crime. Article 2 of the Code of Criminal
Procedure sets out two different norms.
The definition of these 2 different norms in the
Code of Criminal Procedure causes a lot of
problems in practice today, and even remains a
factor that leads to corruption.
In addition, Part 2 of Article 242 of the Code of
Criminal Procedure sets a stricter norm than
the first part, according to which in exceptional
cases the measure of restraint in the form of
imprisonment for a term not exceeding three
years is punishable by imprisonment for
intentional crimes, as well as negligence. in the
case of a crime punishable by imprisonment for
a term not exceeding five years:
When the accused or defendant is
absconding from the investigation and
court;
The identity of the detained suspect has
not been established;
In case of violation of the previously
applied precautionary measure by the
accused, defendant;
The detained suspect or accused, the
defendant does not have a permanent
residence in the Republic of Uzbekistan;
When the crime was committed during the
period of serving a sentence of
imprisonment.
That is, when the accused or defendant is
absconding from the preliminary investigation
and court, when the identity of the detained
suspect is not established, when the conditions
of other measures of restraint other than
previous detention are violated, when the
detained suspect or accused does not have a
permanent residence in the Republic of
Uzbekistan. it is also prescribed to apply a
measure of restraint in the form of arrest to a
person who has committed a crime of low
social risk when committed during the
transition period.
The current legal system of the Republic of
Uzbekistan belongs to the Romano-Germanic
family of law, the structure of criminal and
criminal procedural law and their application
are very similar to the norms of criminal and
criminal procedural law of the Russian
Federation.
Article 242 of the Criminal Procedure Code of
the Republic of Uzbekistan stipulates that pre-
trial detention is defined in Article 103 of the
The USA Journals Volume 03 Issue 04-2021
199
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
Published:
April 30, 2021 |
Pages:
194-199
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue04-30
I
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F
ACTOR
2021:
5.
952
Criminal Procedure Code of the Russian
Federation. when it is not possible to apply
another type of lighter precaution against
persons suspected or accused of committing
the crime” called [5].
CONCLUSION
Another
important
condition
for
the
application of pre-trial detention, which is
provided for in this article of the Criminal
Procedure Code of the Russian Federation and
is not specified in the Criminal Procedure Code
of the Republic of Uzbekistan, is the protection
of human rights and interests. can be assessed
as the appearance of doing.
I believe that the Code of Criminal Procedure of
the Republic of Uzbekistan should harmonize
the rules of detention and apply the measure
of restraint as a last resort when it is not
possible to apply other types of mitigation to
suspects and accused in criminal proceedings.
This amendment prevents, firstly, the violation
of the rights and freedoms of individuals in
criminal proceedings, and secondly, the
unjustified and unlawful detention of suspects
or accused persons in the future if their guilt is
not proven in court, the violation of their
constitutional
rights
and
freedoms.
inconsistencies in the law are eliminated and
corruption is prevented.
Therefore, the second part of Article 236 of the
Criminal Procedure Code of the Republic of
Uzbekistan is amended to read as follows: “A
defendant who has committed a socially
dangerous act punishable by imprisonment
under Article Special Part of the Criminal Code
and may be hidden from inquiry, preliminary
investigation and court , the defendant may be
remanded in custody ”;
The first part of Article 242 of the Criminal
Procedure Code reads as follows: “Detention
as a precautionary measure is punishable by
imprisonment for a term of more than three
years under the Criminal Code, which is
punishable by imprisonment for more than five
years. shall be applied when it is not possible to
apply other types of lenient measures of
restraint in respect of persons suspected or
accused in cases of crimes punishable by
deprivation of liberty”.
REFERENCES
1.
Text of the President Shavkat
Mirziyoyev "Speech at the solemn
ceremony dedicated to the 27th
anniversary of the adoption of the
Constitution of the Republic of
Uzbekistan", December 9, 2019
2.
Constitution of the Republic of
Uzbekistan
Newspaper
"People's
Word", December 15, 1992, No. 243
(494).
3.
The Constitution of the Republic of
Uzbekistan
the
word
'national'
newspaper, December 15, 1992, 243
(494), II.
4.
The Criminal Procedure Code of the
Republic of Uzbekistan, the Supreme
Council of the Republic of Uzbekistan,
1995, No. 2.
5.
"The Criminal Procedure Code of the
Russian Federation" dated 18.12.2001 N
174
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