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NEWS AND EVENTS
July 4, 2007
Strengthening Guarantees of Human Rights Protection
One of the outstanding tasks in the sphere of liberalisation of criminal-procedural legislation and the law application practices ? passing the right to issue arrest warrants to courts has found its legislative solution.

While having written the fundamental ideas of the court?s protecting the legal interests of person into the Constitution of the Republic of Uzbekistan, since the very moment of gaining independence our country is confidently moving toward raising the role of court in the pre-court investigation.

Human rights emerge today as the most important factor, which determines the function, content and forms of courts? and law enforcement bodies? procedural activity. This is a key point which expresses the essence of the work, which has been carried out since the first day of independence and aimed at reforming the court and the legal sphere.

One of the central issues in the process of reforms and further liberalisation of judicial and legal system, as had been designated by the President of our country, is ?passing the part of Public Prosecutor?s office authority to courts. First of all, it concerns the issues connected with limitation of constitutional rights and freedoms of a person, his or her immunity?.

The main tasks of realisation of passing the right to issue arrest warrants from prosecutor?s office to courts were determined by the Decree of President of the Republic of Uzbekistan ?On passing the right to issue arrest warrants to courts? from August 8, 2005. The document underscores that the most important task of reforms of judicial and legal system, which is being carried out in Uzbekistan, is ensuring the effective protection of constitutional rights and freedoms of a person and, above all, his right to protection against groundless criminal prosecution and interference in his or her private life, and personal immunity. It should be noted that the advantage of judicial procedure of application of preventive punishment in the form of taking into custody is that the decision to limit the constitutional rights of a person is made by the body which does no depend on the investigation and prosecutor?s control.

With a view to finding a successful solution for this issue the legislation of foreign countries has been studied. The court control over the pre-court investigation and the universally recognized principles and standards of international right function there. It designates that the rights and freedoms of person are unshakable and nobody has a right to deny or limit them without the decision of court.

The results of the study have been considered during the elaboration of organizational and legal, as well as procedural mechanisms of implementing the right of courts to sanction such type preventive punishment as taking into custody.

It should be noted that passing the right to issue arrest warrants to courts and prolong its terms makes judges responsible for revealing shortcomings of investigation at the early stages of legal proceeding. It will allow to ensure the effective protection of rights and legal interests of person, who had drawn attention of law enforcement bodies.

The Law of the Republic of Uzbekistan ?On introducing amendments and addenda to some of legislative acts of the Republic of Uzbekistan with regard to passing the right to issue arrest warrants to courts?, which was adopted on June 13, 2007 by the Legislation chamber of Oliy Majlis and approved by the Senate of Oliy Majlis of the Republic of Uzbekistan on June 29, 2007 designates the procedural ruling of applying the preventive punishment in the form of taking into custody and the judicial ruling of prolonging the term of holding in custody, as well as strengthens procedural guarantees of protection of constitutional rights and freedoms of person in criminal procedure.

First, it is reflected on the law?s strict regulation of process of applying the preventive punishment in the form of taking into custody.

It is determined that preventive punishment in the form of taking into custody can be applied only in the respect of detained suspect or a person engaged in the case as a culprit of premeditated crimes for which the Criminal code envisages more than three years of imprisonment, as well as the crimes, which had been committed due to carelessness and for which the Criminal code envisages more than five years of imprisonment.

Second, only in extraordinary cases this type of preventive punishment can be applied with regard the premeditated crimes for which the Criminal code envisages not more than three years of imprisonment, and the crimes, which had been committed due to carelessness and for which the Criminal code envisages not more than five years of imprisonment. With the aim of strengthening the procedural guarantees of protecting the constitutional rights and freedoms of person, who is taken into custody and excluding broad interpretation of the norm, the legislator designates the list of extraordinary cases of applying the aforementioned type of preventive punishment. The list includes following circumstances: if the culprit (suspect) does not have a domicile on the territory of Uzbekistan; if the identity of culprit (suspect) has not been established; if he or she has violated the less strict preventive punishment, which had been applied to him or her before; if he or she went into hiding from investigation and court; if the crime had been committed while serving the punishment in the form of arrest or being held in custody.

Third, it is designated by law that the preventive punishment in the form of taking into custody can be applied by the petition of the prosecutor or investigator with prosecutor?s approval in those cases when it is impossible to apply less strict type of preventive punishment. Thus the legislator determines functioning of two types of control, in other words, ensures the correlation of prosecutor?s and judicial control.

Considering the limiting character of the mentioned type of preventive punishment, the legislator strives for preventing of investigator?s possible groundless petitions on applying the preventive punishment in the form of taking into custody by means of prosecutor?s control. While approving the petition of the investigator on applying the preventive punishment in the form of taking into custody in the respect of detained suspect or culprit, the prosecutor must check the existence of evidences for applying the mentioned type of preventive punishment in the documents, which had been presented to him.

Having studied the petition, the prosecutor has a right to give instructions to the body inquest or the investigator with regard to choosing the type of preventive punishment not connected with taking into custody.

Thereby, introduction of these norms will allow raising the responsibility of bodies of investigation for validity and legality of citizen?s being detained.

If agreed with the petition, prosecutor presents it to the court. The petition must include the evidences proving the necessity for taking into custody and precise information about the person to be taken into custody.

Fourth, the legislator has defined a list of persons who must participate in studying the petition on applying the preventive punishment in the form of taking into custody. They are following participants of criminal proceeding: prosecutor, advocate, if the latter participates in the case, detained suspect or the culprit. The law envisages that participation of culprit of detained suspect in the trial on applying the preventive punishment in the form of taking into custody is a must. Thereby the principal of competitiveness is followed and the above mentioned participants of criminal proceeding are ensured the right for defense, which is the important procedural guarantee. Only in case of culprit being on run petition on applying the mentioned type of preventive punishment can be studied without his participation. Upon the result of petition?s study, the judge makes his decision whether to apply preventive punishment in the form taking into custody or reject it.

The fifth procedural guarantee is a strict limitation terms of holding in custody which accounts for 72 hours and can be prolonged by court to 48 hours more, according to the petition of sides ? prosecutor, detained suspect or the culprit and their defender. This term is envisaged for sides to present additional evidences proving validity or groundlessness of the application of preventive punishment in the form of taking into custody. Further prolonging of custody term is prohibited. In some countries, for instance, in the UK the term of holding in custody can be prolonged to 36 hours according to the resolution of senior police officer and according to the order of Justice of the Peace (who usually does not have a juridical education) two times to the term of not more than 36 hours. In France the term of custody, which accounts for 48 hours can be prolonged by the judge by preliminary decision to another term of not more than four days.

The sixth procedural guarantee is the opportunity to appeal against the decision of judge on applying the preventive punishment in the form of taking into custody or rejecting it. The law envisages that the decision of judge can be appealed against through the court, which had made the decision within 72 hours from the day of decision. It should be noted that appeal or protesting is the most often seen way of complain or protest in the international practice. Besides, the advantage of appeal is that the participation of culprit in the proceeding is a must.

Certainly, it is again procedural guarantee of ensuring the right for protection and realization of competitive origins of procedure.

Seventh, fixing the time-limits for culprit and suspect be held in custody and procedure of prolonging of the term be is an important guarantee of person?s legal interests. Currently the term of holding in custody during the crime investigations is 3 months. This term can be prolonged by the petition of particular prosecutor to five, seven, nine months and only in extraordinary cases, considering utmost complexity of the investigated case ? to one year. It is worth noting that, currently the petition with the request to prolong the term of holding in custody of culprit is presented by the investigator, but in accordance with the new law this right will be passed to the prosecutor. Thereby, the prosecutor?s responsibility for complying with the terms of holding in custody will be strengthened. Hence, according to the new law, in case if it necessary to prolong the term of holding in custody the prosecutor will have to institute a petition on prolonging the term of holding in custody. The prosecutor?s petition is reviewed by the court the same way the petition on applying the preventive punishment in the form of taking into custody is reviewed. Establishing the court?s sanctioning culprit or suspect be held in custody as a preventive punishment and prolonging of the term will allow the judges to reveal and eliminate errors of investigation at the early stages of proceedings and thus prosecutors will be focused only on control functions.

Thus, the implementation of the the Law of the Republic of Uzbekistan ?On introducing amendments and addenda to some of legislative acts of the Republic of Uzbekistan with regard to passing the right to issue arrest warrants to courts?, which envisages introducing of additional control over the preliminary investigation will facilitate the realisation of the principal of equal procedural opportunities of sides and practically strengthen all the other principals of fair court including independence and impartiality of court, presumption of innocence, as well as the right of culprit for the effective assistance of lawyer.

Professor Mirzayusuf Rustambaev, Doctor of juridical sciences.


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