of August 22, 1997 No. 12
About observance of the procedural legislation by courts in case of trial of criminal cases under the first instance
In the conditions of formation in Uzbekistan of the democratic constitutional state the most strict respecting the rule of law and the rights of citizens, removal of reasonable and fair sentences with observance of all regulations of the procedural legislation is of particular importance.
The majority of cases by courts of the republic are considered in strict accordance with the procedural law, however still the massive faults which are negatively influencing quality of permission of cases are not obsolete.
The principle of competitiveness, the rights of participants of legal procedure guaranteed by the law is quite often broken. In preparatory stage of process the information about the identity of the defendant, circumstances excluding possibility of proceeedings is not always properly researched. There are facts of unreasonable refusal in satisfaction of petitions of participants of process. Also the procedure for consideration of petitions is broken. Often protocols of judicial session do not conform to qualifying standards.
For the purpose of elimination of noted violations, observance of the procedural legislation in case of legal proceedings of criminal cases the Plenum of the Supreme Court of the Republic of Uzbekistan 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.
Specify to courts severe violations in case of purpose of criminal cases to legal proceedings and oblige them to find out question of correctness of the measure of restraint chosen concerning the person accused on each grandfather that directly follows from requirements of article 396 Code of Criminal Procedure of the Republic of Uzbekistan.
Explain to bodies of pretrial investigation and courts that the measure of restraint in the form of pledge (article 249 Code of Criminal Procedure) is effective remedy of ensuring accomplishment by accused (defendant) of the obligations assigned to it without isolation from society and consists in entering of sum of money or values into the deposit account of body of pretrial investigation or district (city) department of legal executives. Therefore investigation authorities, courts taking into account the specific facts of the case and the identity of accused (defendant) need to discuss question of possibility of application of measure of restraint to it in the form of pledge and to explain to accused (defendant) the right to introduction of subject of pledge personally or relatives, and also other citizens or legal entities.
2. Explain that according to article 434 Code of Criminal Procedure in case of identification of the defendant in the protocol of judicial session, except surname, name, middle name, dates and places of its birth, shall be reflected also other data concerning it the personality, in particular about criminal records, availability of the state awards or honorary titles, the state of health and etc.
3. The chairman in judicial session shall explain completely to the defendant of its right, members of the parties, experts and specialists of their right and obligation in legal proceedings what shall be reflected in the protocol of judicial session (Article 435 - 437 Codes of Criminal Procedure).
3-1. Draw the attention of courts that according to article 439 Code of Criminal Procedure court investigation begins with announcement by the state prosecutor of the indictment about what the corresponding record shall be entered in minutes of judicial session.
4. Draw the attention of courts to their obligation by consideration of each case directly to research proofs in judicial session: interrogate defendants, the victims, witnesses, to hear expert opinions, to inspect physical evidences, to announce protocols and other documents.
Announcement of testimonies of the defendant can take place only in the presence of the circumstances specified in Art. 104 of the Code of Criminal Procedure which list is exhaustive.
The testimonies of the witness or the victim this on pretrial investigation can be announced only in the presence of essential contradictions between these indications and indications in court, and also in case of absence in judicial session of the witness or victim for the reasons excluding possibility of their appearance in court.
To the circumstances excluding appearance in court in addition to the death of person, can be carried: heavy disease, distant and long business trip, disposal from the residence in case of impossibility to establish the location, etc. The decision on recognition of circumstance excluding possibility of appearance of persons in each case shall be made by court after discussion of this question.
The announced testimonies of the defendant (the victim, the witness) are subject to research court during court investigation.
5. Proceeding from sense of Art. 438 of the Code of Criminal Procedure of the petition of participants of legal proceedings for challenge of new witnesses, experts, specialists, about 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 the admission of the public prosecutor, public defender, about recognition by the victim, civil claimant, about suspension of case or adjournment by its hearing, involvement of the defendant to criminal liability on new accusation, attraction to participation in case in quality of the accused other person, diversion, etc.), declared both in preparatory part of legal proceedings are permitted and during legal proceedings. If the party once again declares earlier discussed and permitted petition, the chairman refuses its introduction for discussion about what it is specified in the protocol of judicial session.
6. Draw the attention of courts to value for establishment of the truth in the matter of research of physical evidences, documents, survey of the area and the room.
Physical evidences and documents are subject to careful research (according to survey, announcement) in judicial session on an equal basis with other proofs on case, and persons to whom they are shown can draw the attention of court to these or those circumstances connected with their research. All actions of court for survey of physical evidences and announcement of documents shall be reflected in the protocol of judicial session.
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