Analysis of the norms of the criminal procedure code that use the term "Procedural actions": problem and solution

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ANALYSIS OF THE NORMS OF THE CRIMINAL PROCEDURE CODE THAT USE THE TERM "PROCEDURAL ACTIONS": PROBLEM AND SOLUTION

Kadirov Fahriddin Fayzullayevich - Senior Investigator,

POLICE DEPARTMENT, INTERNAL AFFAIRS BODIES MIRZO-ULUGBEKDISTRICT, TASHKENT, REPUBLIC OF UZBEKISTAN

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 also developed a definition of the concept of "procedural actions", put forward proposals and recommendations for its reflection in the current code of criminal procedure. The proposals and recommendations proposed in the article serve to limit the procedural and non-procedural activities of the interrogator, investigator, prosecutor, court (judge) and defense counsel in criminal proceedings.

Keywords: procedural actions, pre-investigation check, inquiries, investigative actions, judicial actions.

criminal code procedural actions

АНАЛИЗ НОРМ УГОЛОВНО-ПРОЦЕССУАЛЬНОГО КОДЕКСА, В КОТОРЫХ ПРИМЕНЯЕТСЯ ТЕРМИН «ПРОЦЕССУАЛЬНЫЕ ДЕЙСТВИЯ»: ПРОБЛЕМА И РЕШЕНИЕ

Кадиров Фахриддин Файзуллаевич - старший дознаватель, полицейский участок, органы внутренних дел Мирзо-Улугбекского района, г. Ташкент, Республика Узбекистан

Аннотация: в статье проанализированы нормы Уголовно-процессуального кодекса, в которых применяется термин «процессуальные действия», определены существующие проблемы и недостатки, связанные с содержанием данного термина. Также разработано авторское определение понятия «процессуальные действия», выдвинуты предложения и рекомендации по его отражению в действующем Уголовно-процессуальном кодексе. Изложенные в статье предложения и рекомендации служат для ограничения процессуальной и непроцессуальной деятельности дознавателя, следователя, прокурора, суда (судьи) и защитника в уголовном процессе.

Ключевые слова: процессуальные действия, доследственная проверка, дознания, следственные действия, судебные действия.

Individuals directly or indirectly involved in criminal proceedings, ordinary citizens, or employees applying the rules of criminal procedure, mainly use the term of investigative actions in the course of proceedings.

Indeed, the content of the criminal trial process is the pre-trial phase. Therefore, the actions taken at this stage are called investigative actions, and a conclusion is made on the presence or absence of a criminal element based on the evidence gathered during their implementation. The terms of investigation and judicial proceedings introduced to the CPC (Criminal procedural code) which was adopted in 1959 also serve as a fact. In particular, Article 113¹ of the CPC provided for the timing of investigative actions or Article 50 provided for protocols on investigative and judicial actions as a source of evidence, or

Article 196 provided for the procedure for appealing against the actions of a prosecutor conducting a preliminary investigation or individual investigative actions. Of course, this approach of the legislator was logically consistent with the structure of the CPC and the content of the norms. However, the actions related to the pre-investigation, as well as the actions that may be taken by the defender are not regulated by the articles of the CPC.

In other words, while the legislature focused on the grounds and timing of the criminal case, as well as denial and appeal, but he didn't take into consideration the scope of the actions taken at the stage of instituting the criminal case and the procedure for conducting them. However, in determining the procedural status of the defender, there is no mention of the order in which the actions taken by him should be carried out in order to protect the person under his protection. As for the actions related to search operations, introduction of a regulatory norm was considered to be completely contrary to the criminal policy pursued at that time. However, the actions performed by the defense attorney and actions connected with operational-search are included the actions that represent the criminal justice process.

An attempt was made to eliminate this obvious shortcoming in the 1994 CPC (Criminal Procedure Code), which resulted in the introduction of a new term “procedural actions” in the criminal procedure legislation.

On the one hand, this novel is positively evaluated, first of all, urges the legislator to regulate the actions to be taken at the stage of initiation of a criminal case, the actions of the defense attorney and the actions of operative-search content. Second, in addition at the same time to regulating them, their procedural position was defined too. But the term procedural action was introduced into criminal procedure law, and According to E.G. Lukyanova, [4] it caused some problematic situations too.

The first problematic situation is the need to clarify the balance between investigative and judicial actions in terms of the content of procedural actions. If we follow the requirements of Article 27 of the CPC, this article specifies the procedure for appealing by a legislator to a procedural action or decision of an inquiry officer, investigator, prosecutor, judge and court. In its turn, Article 150 of the CPC deals with procedural actions related to the exhumation of a corpse, including attempts to examine the corpse, identification and taking samples for expert examination.

And in this way, the legislature proposed a broader understanding of procedural actions, emphasizing that its procedural nature is also expressed through investigative actions. Procedural actions in the legislation and the ambiguity of similar terms Yu.S. Vashchenko describes as an “abstract place”. He suggests that laws be used not only by courts or civil servants, but at the same time by citizens, and that abstract terms and rules not be used in them, and that be approached from the point of view of “factual accuracy” and “relevant accuracy” [1].

Hence, speaking about procedural, investigative, and judicial actions, it is less accurate to make assumptions about the balance between them. Because it is obvious that the actions taken before and during the trial are external and internal. In terms of their appearance, the actions taken during the pre-trial investigation can be called pre-investigation actions, the actions taken during the interrogation, the actions taken during the preliminary investigation, the actions taken during the trial, the actions taken during the trial, but it is difficult to determine them at first glance. In the view of the legislator, procedural actions serve as an appearance of all actions that take place before the investigation, inquiry, preliminary investigation and trial. This can also be seen in the amendments and additions introduced to the CPC. In particular, according to Article 392, part 4 of the CPC, the official of the body conducting the pre-investigation investigation or operative-investigative activities shall be instructed by the investigator to carry out certain procedural actions and investigative actions in the case and assist the investigator in carrying out procedural actions are also imposed as an obligation.

If we proceed from the internal appearance of procedural, investigative and judicial actions, then we can observe that the actions regulated by the articles of the CPC have the same internal order in content, that is, the grounds and procedure for their conduct are the same. Usually they differ from each other in the subject of implementation and in some features of the registration. More precisely, if the investigator decides to conduct certain procedural actions, the court will be satisfied with the ruling. It is quite obvious that procedural actions are not the object of determining the balance of investigative and judicial actions in terms of external and internal appearance. This is because investigative and judicial actions differ not in content but in the stage at which they are conducted.

The second problematic situation. Pre-trial and pre-trial investigations, inquiries, preliminary investigations, court proceedings or procedural actions shall be carried out in the quick and accurate solution of crimes, in the punishment of any person who has committed a crime, as well as in the impunity and conviction of any innocent person. the designation is not a matter of concern to the practitioner.

We think, that's one of the reasons B.H. Pulatov understands that investigative actions are carried out in the judicial investigation as well [7].

It is known that judicial actions from the investigative actions to the consideration of criminal cases in jury and individually, public hearing of criminal cases in court, public participation in criminal proceedings, based on the principles of direct and oral verification of evidence, as well as does not require a separate report for each action.

If we understand the content of investigative and judicial actions as separate actions from this logic of the legislature, then it is not understandable that the structure of both actions consists of the same system of actions. In fact, since they are different actions, they must also consist of a specific system from other actions. This further substantiates our conclusion that above investigative and judicial actions differ not in their internal construction but in 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, it is not possible to apply criminal coercive measures (search, seizure of postal telegrams) until a criminal case is initiated.

However, initiation of a criminal case is based on the actions taken before the initiation of the criminal case, and therefore this stage is the investigation stage before the investigation. Usually, in some cases necessary sometimes sufficient materials are collected during the investigation phase prior to the investigation. [5; (A. Panyukov expressed his opinion on this issue as well)]. According to the scientist, these materials have a non-procedural form, and only as a result of which a criminal case is initiated and then it will have procedural form. Perhaps, based on this, the practice that has emerged today has turned pre-investigation investigation into a non-procedural form of inquiry and preliminary investigation [6].

A.N. Khalikov, who conducted research on optimizing the pre-trial process focused on obtaining non-evidence-based information during the pre-trial investigation in order to determine the quality and dynamics of the evidence gathered at the pre-trial stage. In his view, if today the criminal procedure law leaves the stage of initiating a criminal case to its limits, then the scope of actions to be taken before the initiation of a criminal case is limited, limiting (search, seizure, exhumation, etc.) the scope of certain procedural actions that must be carried out to find the culprit and prove his guilt.

This situation not only prevents the timely detection of the crime, finding the culprit and proving his guilt, but also leads to some gross errors, i.e. the rejection or instigation of an unfounded criminal case [10]. In addition, it leads to a gross violation of the rules relating to the stage of instituting criminal proceedings in order to perform the functions of criminal procedure legislation, in particular, the terms of the pre-investigation investigation. The reason is that the scope of procedural actions that can be carried out at the stage of instituting criminal proceedings is limited, and the content of the pre-investigation consists of inspections and documentary inspections carried out by a specialist, as well as operational search activities. This highlights the need to expand the capacity of the criminal prosecution phase. It should be noted that the legislation of many foreign countries does not provide for the stage of instituting criminal proceedings at all, and therefore the officials conducting the preliminary investigation begin to collect evidence-based information as soon as they receive a report of a crime. (Austria, GFR, USA, etc.).

Another aspect of the issue is that, in terms of the procedural form, “requiring additional documents and comments” is provided for in the norms of the CPC, but conditions, sequence and procedure for their conduct are not described in detail. It is natural that the inclusion of actions that do not have a procedural form in the list of procedural actions raises doubts about the recognition of the information obtained as a result of their conduct as evidence. A similar situation can be seen in the existence of problems with the determination of the procedural status of a defender in criminal procedure law. Article 53 of the CPC stipulates that a defender is a participant in the evidentiary process and is required to take certain actions in order to protect his or her client, which may be initiated by the defender, but the scope of these actions is limited to conducting inquiries, written explanations, and obtaining references, descriptions, and other documents. On the other hand, the legislature stipulates that these actions may be performed by a defender, emphasizing that the adversarial principle can be applied to pre-trial investigation, inquiry, and preliminary investigation, but the conditions, sequence, and procedure of such actions are not regulated by other articles of the CPC. This leads to several problematic possibilities.

First, defense attorney's interrogation, written explanation, and request for a reference, description, and other documents include interrogation, seizure, review, and submission of the content provided in the CPC.

Second, defender cannot conduct a “lawyer's investigation” at the same time as the right to interrogate, give a written explanation and request a reference, description and other documents. This is because the procedural form of the interrogation, written explanation and request of the reference, description and other documents by the defense counsel is not defined in the CPC. At this point, the question arises as to whether the documents that are requested at the initiative of the defender and presented to the inquiry officer and the investigator serve as evidence?

According to S.A. Schaefer, all references, descriptions and other documents related to the investigation of a criminal case have a procedural form because they are conducted within 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. Petruxins argue that evidence can only be considered as evidence when it is procedurally formalized [7; 9]. According to procedural scholars, the actions taken during the criminal proceedings were subject to procedural formalization, as well as the evidentiary value of the materials collected as a result of the actions, and the actions were carried out by persons with procedural authority, in addition, the actions may be procedural or non-procedural, depending on the stage of the criminal proceedings in which they were committed. Such an artificial classification, which is not justified from the point of view of criminal procedure law, impedes the performance of the functions of criminal procedure legislation.

Indeed, in their view, “non-procedural” [2; 3] data collected as a result of actions are not entitled to be included in the evidence base. The most dangerous aspect of this situation is that the activities of defense and investigative bodies in criminal proceedings are declared non-procedural and lead to their exclusion from the scope of the procedural process.

However, Article 87 part 1 of the CPC stipulates that evidence may be collected not only through investigation and judicial proceedings, but also through search operations. Interestingly, despite the fact that the term procedural actions is reflected in the norms of the CPC, still in literatures, procedural actions are referred to as investigative actions.

Most scholars interpret investigative actions in a broad sense, including almost all the procedural actions of the investigator, as well as the procedural decisions he or she makes, and even the 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 participants in the proceedings, to provide the necessary conditions for the investigation, it is appropriate to call them investigative actions, (for example, to explain to the accused the right to announce the completion of the preliminary investigation and to acquaint him with the materials of the case) as they were conducted during the preliminary investigation.

Of course, they are not included in the list of actions of evidentiary value, but their conduct provides that the criminal case is conducted in the pre-trial stages. Therefore, they can be included in the list of supportive actions.

If we take into account that the pre-trial stage consists of pre-trial investigation, criminal prosecution and inquiry, in addition to the pre-trial stage, then the actions taken during the preliminary investigation do not cover internal and external pre-trial stages.

This is a “procedural action” reflected in the current CPC, which does not depend on the pre-trial stages, but covers all types of (evidence-based, supporting) actions, representing the content of pre-trial investigation, operational search, inquiry, preliminary investigation and judicial activity and defines the concept in the following context and substantiates the expediency of using it as a single criterion:

«Procedural action is a pre-trial investigation, operative-investigative activity provided for in the norms of criminal procedure law, pre-trial proceedings and pre-trial investigation by the inquiry officer, investigator, prosecutor, court (judge) and defender as well as an action to be taken in the course of an inquiry, preliminary investigation and trial, which has a substantive value or ancillary recommendation, and which is reflected in the relevant procedural as well as in the supplementary document».

In conclusion we can say that the recognition of the above mentioned definition in a separate article in the first part of the general part of the CPC limits the procedural and nonprocedural nature of the activities of the inquiry officer, investigator, prosecutor, court (judge) and defender.

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