The paper analyzes the criminal procedural form of proof in the framework of criminal proceedings in cases of private prosecution. Relevant positions are indicated, their critical analysis is given. In addition, the author provides his own point of view on the issue under study.
Keywords: private prosecution, criminal procedure, criminal procedure form, private prosecutor, inquiry, judicial investigation.
The object of study in this article is the production of private prosecution and the process of proof carried out within its framework. The direct subject of consideration is the ways of improving the proof in the framework of the prepared proceedings.
Based on the analysis of the current criminal procedural legislation, it can be concluded that the judicial procedure in question is characterized by the abolished pre-trial cycle of evidence (law enforcement), a simplified procedure for initiating law enforcement proceedings, which involves checking the application to initiate a criminal case only “in form”, for compliance with the established Criminal Code. requirements of the procedural code of the Republic of Uzbekistan, and, paradoxically, complicated judicial cycle of evidentiary activity.
As a first approximation, we can say that the method of complicating the proceedings under study is the fact that the process of proof carried out within its framework is “original”. That is, it unfolds not on the basis of already identified sources of evidentiary information — investigative evidence, on the basis of which the court forms judicial evidence, as in a criminal case in a general manner, but on the basis of evidence that has not been previously investigated and evaluated by anyone, formed here.
For this reason, the standard procedure for collecting and verifying evidence in private prosecution proceedings seems to need to be “strengthened” by specific procedural forms aimed at ensuring the identification of sources necessary for the consideration and resolution of a criminal case of data.
It should be noted that many authors, disagreeing with the existing version of the normative regulation of proceedings in cases of private prosecution, speak of the need to improve the evidentiary procedure carried out within its framework so that the positions of pre-trial proceedings are strengthened.
Summarizing the points of view presented in the literature on this issue, it can be concluded that the researchers who have dealt with the relevant problem most often propose to supplement the proceedings on private prosecution cases in the form in which they are now with a full or shortened cycle of pre-trial evidentiary activity in the form of an application verification procedure. on the initiation of a criminal case, carried out by an inquiry officer [1] or even a court [2], in the form of an inquiry [3], or to secure the right of the court to send instructions to the bodies of inquiry to carry out certain procedural actions [3].
With regard to the possibility of the court to send orders to the body of inquiry to carry out certain procedural actions to collect evidence, we note that the judicial practice studied by us allows us to conclude that the main investigative actions used in private prosecution proceedings are interrogations of various participants in criminal proceedings and forensic medical examination.
But all these procedural actions the court either performs within the framework of the judicial investigation itself with the participation of the parties, or instructs an expert to perform in the prescribed manner. We have not identified the need for the court to carry out any other investigative actions that could be entrusted to the interrogating officer. On the basis of which we conclude that the considered option for improving the procedure for collecting evidence in the framework of private prosecution proceedings may not be in sufficient demand.
More complicated is the issue of introducing in all cases of private prosecution the possibility of carrying out an inquiry carried out by a court decision or a petition of the parties. We believe that the corresponding option for improving the procedure of proof in the framework of the proceedings under consideration can have very serious advantages, since it allows you to collect all the evidence necessary for the consideration of a criminal case before the criminal case enters the court, which greatly simplifies the process of proof in the framework of a judicial investigation.
It should be noted that along with the “pluses”, the considered option for improving the current legislation also has its “minuses”: with its application, the burden on the bodies of inquiry will increase significantly. The terms of consideration of criminal cases of private prosecution will also increase.
However, we believe that, despite the disadvantages of the considered way of transforming the proceedings in cases of private prosecution, it should not be abandoned.
It seems that the correct, from our point of view, variant of resolving the problem can be found thanks to a combination of the positions of such authors as V. V. Doroshkov and Z. Z. Talynev, and such researchers as L. A. Vasilenko [4], M. V. Sobolev [5] and Yu.Yu. Churilov [6], who believe that the existence of a special procedure for initiating private prosecution cases should not exclude the alternative possibility of initiating a criminal case in the usual manner when victims apply to other law enforcement agencies, so that the body of inquiry, the inquirer, the investigator check the messages received by them on crimes for which criminal prosecution is carried out in private.
It seems that, in fact, the bodies of inquiry, interrogating officers, in a general manner, should check the received application, in the general manner, with one exception — with the consent of the victim — make a decision to initiate a criminal case and send it to the court. Subsequently, on the basis of the verification materials received by the interrogating officer, the victim, recognized as a private prosecutor from the moment the court issued a decision on the appointment of a trial, may independently carry out criminal prosecution in court. A similar scenario is acceptable for cases where the person who committed the crime is known to the victim.
In the event that an inquiry in a criminal case is carried out on the basis of the Criminal Procedure Code of the Republic of Uzbekistan for the reason that the person guilty of committing a criminally punishable act is unknown, we believe that it is necessary to act in a similar way. That is, a criminal case should be initiated only with the consent and at the request of the victim. However, the prosecution in court must also be supported by a private prosecutor.
At the same time, a full-fledged inquiry should be carried out in a criminal case in the situation under consideration. We note that, speaking about the need for such, we partially agree with Yu.Ya. Makarov, who considers it right to give the court the right, at the request of the person who filed the application, to instruct the body of inquiry to take measures aimed at identifying the person subject to criminal liability [7], and by such an author as V. G. Stepanov [8], who expresses a similar point of view.
We believe that if the person who committed the crime is unknown, it is not enough just to establish his identity. It is necessary to carry out a full range of measures aimed at confirming the guilt of this person. For this, a full investigation is required. Otherwise, the conclusion that a person has committed a crime may turn out to be unfounded.
It seems that in the position we have cited, discussions and doubts can be caused by the provision that a private prosecutor can independently support the prosecution in court, using the “development” of the interrogating officer at the stage of initiating a criminal case or preliminary investigation. We believe that the relevant objection can be withdrawn provided that the private prosecutor is provided with mandatory free qualified legal assistance.
The advantages of the proposed option for improving the proceedings in cases of private prosecution are, firstly, the fact that it will remove the problem of organizing interaction between the court and the investigator.
As the judicial practice we studied shows, in 85 % of cases, before going to court, victims send applications to other law enforcement agencies. In the relevant cases, an audit is carried out, based on the results of which the investigator issues a decision to send to the court an application to initiate a criminal case along with the collected materials. Based on the results of consideration of the relevant materials, the courts traditionally adopted a decision to return the application to bring it into line with the requirements of the law.
That is, in fact, now the situation is such that when an application was received to initiate a criminal case related to cases of private prosecution, certain work was carried out by the interrogator, the relevant participant in the criminal proceedings, data relevant to the criminal case were collected. However, their full subsequent use by the court was not carried out, since the procedure for private prosecution does not provide for pre-trial proceedings. In addition, in the situation under consideration, the victim's application to initiate a criminal case was considered twice, which created additional obstacles to his access to justice.
Thus, summing up all of the above, we can conclude that the procedural form of proceedings in cases of private prosecution, especially in terms of the process of proof, needs to be improved. The most effective ways of this can be called the introduction of preliminary verification of applications for the initiation of criminal cases of private prosecution by interrogators, as well as the introduction of mandatory inquest in cases in which the person who committed the crime is unknown, so that, however, in each of these cases, the prosecution in court is supported by a private prosecutor.
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