RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF UZBEKISTAN

of September 24, 2004 No. 12

About some questions of application of regulations of the criminal procedure law on admissibility of proofs

The fundamental principle of the criminal procedure law enshrined in the Constitution of the Republic of Uzbekistan is the presumption of innocence according to which person is considered innocent until his guilt in crime execution is proved in the procedure provided by the law and is established by the court verdict which took legal effect.

The sentence can be based only on those proofs which are collected in the procedure established by the law.

Studying of court practice shows that in case of production of inquiry, pretrial investigation and judicial review of criminal cases in general the rules of the criminal procedure law on proofs and proof are respected.

At the same time the violation facts from investigators are not obsolete, investigators, prosecutors and court of the requirements of the law regulating procedure for collecting, check and assessment of proofs.

For the purpose of strengthening of protection of the rights of citizens against illegal actions of the state bodies and officials responsible for criminal proceeding, ensuring compliance and execution with requirements of the Constitution, the Code of penal procedure by them, being guided by article 17 of the Law "About Courts", the Plenum of the Supreme Court of the Republic of Uzbekistan

DECIDES:

1. Explain that according to the principle of legality enshrined in article 11 Code of Criminal Procedure, production on each criminal case shall be performed in strict accordance with the established criminal procedure law procedure.

Respect for the principle of legality is obligatory also in activities of bodies of inquiry, pretrial investigation and court for collecting, check and assessment of proofs.

Any departure by the investigator, investigator, prosecutor and court from exact execution and respect for the norms of the Criminal Procedure Code regulating general terms of proof by what motives it would not be caused involves recognition inadmissible received by it by proofs.

Inadmissible proofs have no legal force, cannot be used for proof of the circumstances provided by Articles 82 - 84 Codes of Criminal Procedure, and are the basis for accusation.

2. Draw the attention of bodies of inquiry, the investigation and courts that in the course of proof the important place is taken by the correct solution of question of admissibility of proofs.

Conditions of admissibility of proofs is the following:

the evidence shall be obtained by the proper subject, i.e. person, competent to carry out that legal proceeding during which the evidence is obtained;

actual data shall be obtained only from the sources listed in part two of article 81 Code of Criminal Procedure;

the evidence shall be obtained with observance of rules and procedure for carrying out legal proceeding during which the evidence is obtained;

in case of receipt of the proof all requirements of the law on fixation of the course and results of investigative and judicial action shall be observed.

Explain to courts that non-compliance with any of the listed conditions of admissibility of proofs is the basis for recognition of proofs inadmissible.

3. Proofs, in particular, are recognized inadmissible if:

1) the evidence is obtained:

when carrying out investigative actions by the investigator without order of the investigator, the prosecutor after the end of inquiry;

investigative action is carried out by the investigator who did not accept in accordance with the established procedure case to the production or is not included in the investigation team;

investigative action is carried out by person which is subject to branch on the bases, the stipulated in Article 76 Codes of Criminal Procedure;

2) data are obtained without carrying out investigative and judicial actions or from the source which is not provided by the law, for example, in the course quickly - the search actions which are not drawn up in the procedure established by the criminal procedure law;

3) the evidence is obtained by illegal method, i.e. without observance of the procedural rules of their collecting provided by the law:

a) investigative action is carried out without receipt of the sanction of the prosecutor when it is necessary (except for circumstances, being urgent);

b) in investigative action person interested in the outcome of the case including the law enforcement officers or other persons helping them on a voluntary basis participated in quality of the witness;

c) indications, including grateful, are received using tortures, violence and others cruel, inhuman or degrading treatments, and also by deception and other illegal methods;

d) the expert opinion is received with violation of the rights of the suspect, person accused, defendant in case of purpose of examination, and also in cases when the expert was subject to branch;

e) testimonies of the suspect, the person accused, the defendant are received in the absence of the defender, in cases when its participation is obligatory;

e) close relatives of the suspect, the person accused, the defendant in defiance of requirements of article 116 Code of Criminal Procedure are interrogated without their consent as witnesses or the victims on the circumstances concerning the suspect, the person accused, the defendant;

4) the procedural form of fixing of proofs is broken:

there is no information about persons participating in investigative or judicial action;

are not explained to persons participating in investigative or judicial action, their rights and obligation;

time of the beginning and the end of investigative or judicial action is not specified;

other requirements provided by Articles 90 - 93 Codes of Criminal Procedure are not fulfilled.

Proofs can be acknowledged inadmissible and in other cases of obtaining them with violation of requirements of the criminal procedure law.

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