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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF TURKMENISTAN

of October 2, 1997 No. 9

About observance of the procedural legislation by courts in case of legal proceedings of criminal cases

The plenum of the Supreme Court of Turkmenistan notes that the vast majority of cases is considered by courts in strict accordance with requirements of the criminal procedure law.

At the same time by consideration of separate criminal cases on the first instance severe violations of the procedural legislation in this connection the questions which are subject to permission in preparatory part of judicial session and in case of court investigation do not become clear with sufficient completeness a lot of things are still allowed: the procedure for permission of petitions, researches of proofs, including productions of examination and survey of physical evidences is broken. The facts of violation of general terms of legal proceedings take place.

In protocols of judicial sessions of the testimony of the interrogated persons, petitions of participants of process register is incomplete and inexact, not stipulated corrections are allowed. Specifying and other violations of the criminal procedure legislation deprive courts of opportunity comprehensively, fully and objectively to research all facts of the case, to establish the reasons and conditions promoting crime execution that as a rule, attracts the resolution of unreasonable sentence.

Velayatsky courts and the Ashgabat city court contrary to requirements of the law by consideration of criminal cases in cassation procedure and according to the procedure of supervision yet not in all cases carefully check observance of the criminal procedure legislation by courts in case of legal proceedings and do not take necessary measures for elimination of the allowed violations.

For the purpose of elimination of noted shortcomings and improvement of quality of legal proceedings of criminal cases, the Plenum of the Supreme Court of Turkmenistan

Decides:

1. Draw the attention of courts to need of strict observance of the procedural legislation in case of legal proceedings of criminal cases, meaning that only exact and its steady accomplishment provides comprehensive, complete and objective investigation of the facts of the case, identification of the reasons and conditions promoting making of crimes and educational impact of legal procedure.

2. In sense of Art. 260 of the Code of Criminal Procedure in case of legal proceedings change of accusation on heavier or significantly differing on the actual circumstances from accusation on which the person accused is transferred to court is not allowed.

Explain that change of accusation on heavier should be considered cases when: a) other regulation of the penal statute (Article, part of Article or Item) which sanction prescribes more stiff punishment is applied;

b) accusation joins the additional, not imputed to the person accused facts (episodes) attracting change of qualification of crime on the law prescribing more stiff punishment, or accusations increasing the actual amount though not changing legal evaluation of deeds.

3. Draw the attention of courts that without consecutive accomplishment of all legal proceedings and clarification of the questions which are subject to permission in preparatory part of court investigation in strict accordance with requirements of Art. 15 of the Code of Criminal Procedure

In this part of legal proceedings the chairman shall find out carefully all questions connected with identification of the defendant (Art. 279 of the Code of Criminal Procedure) and also the circumstances excluding possibility of proceeedings concerning this person.

Those which matter for the solution of questions not only on purpose of measure of punishment, but also in case of determination of type of detention regime, the solution of question of the civil action, on application of amnesty, etc., for example can be carried to number of other information about the identity of the defendant of the Codes of Criminal Procedure specified in Art. 279: participation in fighting on protection of the Homeland, availability of the state awards, data on the state of health, on availability of criminal records, on serving sentence in places of detention, etc.

4. Proceeding from sense of Art. 285 of the Code of Criminal Procedure, the petition of participants of legal proceedings for challenge of new witnesses, experts, specialists, for reclamation of physical evidences and documents are subject to permission directly after their statement and discussion.

By the same rules also all other petitions connected with determination of circle of participants of legal proceedings and movement of case (about recognition by the victim, civil claimant, about suspension of case or adjournment by its hearing, about the direction of case on additional investigation, about diversion, etc.), declared both in preparatory part of judicial session are permitted and during legal proceedings.

The law (h h 2, 4, the 5th Art. 285 of the Code of Criminal Procedure) provides the right of person to which it is refused satisfaction of the petition in case of production of inquiry, of pretrial investigation, in administrative or judicial session to declare it further depending on the course of legal proceedings, and also the right of court on own initiative to take out determination and to make those legal proceedings which considers necessary or the need of which was indicated in the petition unsatisfied earlier.

The petitions which arrived after pronouncement of the resolution on the bringing of the person accused to court, but prior to legal proceedings, are subject to permission in preparatory part of judicial session. However for the purpose of ensuring their bystreyshy permission the chairman on case can make certain preparatory actions before (to request references, characteristics and other documents, etc.).

5. Courts shall mean that removal of determinations on the questions listed in the p. 2 of Art. 258 of the Code of Criminal Procedure can take place only in the consultative room with statement them in the form of separate documents.

The determinations which are taken out by court in judicial session without removal to the consultative room according to the p. 4 of Art. 258 of the Code of Criminal Procedure are subject to entering in the protocol of judicial session and in case of refusal shall contain motives of the made decision in satisfaction of the declared petition.

Petitions for removal of the judge, the juryman, the prosecutor, the court session secretary, the translator, the specialist, the expert, the lawyer are considered according to the procedure, established by the Art. of the Art. 16, 25 - 29, 43, 531, 77 Codes of Criminal Procedure.

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