International Journal of Law And Criminology
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VOLUME
Vol.05 Issue02 2025
PAGE NO.
23-28
10.37547/ijlc/Volume05Issue02-04
Issues of improving the admissibility of evidence in
criminal proceedings
Djalilov Javoxir Abdumajitovich
Independent Researcher of Academy of the Ministry of Internal Аffairs of the Republic of Uzbekistan
Received:
13 December 2024;
Accepted:
15 January 2025;
Published:
17 February 2025
Abstract:
This article analyzes the admissibility of evidence in criminal proceedings. The norms of the Criminal
Procedure Code of the Republic of Uzbekistan on the admissibility of evidence are analyzed. Based on the results
of the analysis and research, the author’s substantiated proposals
and recommendations were elaborated.
Keywords:
Crime, evidence, admissibility, evidence collection, examining evidence, evaluating evidence, proving.
Introduction:
The issue of improving the admissibility
of evidence in criminal proceedings is directly related
to improving the sources of regulatory legislation that
determine when this evidence is considered
admissible, and simultaneously with the development
of proposals and recommendations aimed at
eliminating the violations committed. of the law,
committed by subjects of proof in the practice of
judicial investigation. During the collection and
examination of evidence in criminal proceedings,
persons authorized to do so may make various
mistakes and shortcomings.
V.S. Balakshin rightly noted that any violation of the
criminal procedure law cannot be grounds for
recognizing evidence as inadmissible. The grounds for
recognizing evidence as inadmissible should be, firstly,
violations committed during the collection of evidence,
and secondly, violations that cause insurmountable
doubts about the reliability and (or) relativity of
evidence from information or the presumption arising
from them during the study and assessment of the
totality of evidence.
Such violations that make evidence inadmissible have
been studied by a number of experts in this field, who
have tried to develop various classifications of these
violations.
In particular, N.V. Kostovskaya divided violations
leading to the recognition of evidence as inadmissible
into violations that do not affect the outcome of the
case and those that affect the outcome of the case,
justifying the conclusion that
“a significant violation affecting the outcome of the
case” covers the following three forms:
a significant violation of the criminal procedure law;
a significant violation of the criminal law;
a significant violation of the substantive law on civil
consequences arising from the committed act.
Although this opinion of N.V. Kostovskaya is not
erroneous, one should not forget that it has a general
meaning, and in particular, a significant violation of the
criminal procedure law covers the entire process.
In addition, it should be noted that the inclusion of a
significant violation of the requirements of the criminal
law and substantive law on civil consequences in the
number of violations leading to the recognition of
evidence as inadmissible is somewhat beyond the
scope of the subject of criminal procedure science.
It should be noted that although N.V. Kostovskaya
developed this proposal taking into account the
specifics of Russian criminal procedure legislation, it is
noteworthy that she also separately classified a
material violation of the criminal law, and in this case,
in our criminal procedure legislation, it can be noted
that such provisions are taken into account (Article 88
of the CPC).
Unlike N.V. Kostovskaya, I.V. Abrosimov proposes to
classify violations that determine the inadmissibility of
evidence as follows: the timing of the investigative
action, its appointment and conduct in accordance with
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International Journal of Law And Criminology (ISSN: 2771-2214)
the procedural procedure; its composition of
participants; violation of the requirements of the
criminal procedure law regulating the procedure for
collecting, securing and examining evidence. These
violations can be general for all investigative actions
and specific for individual investigative actions, as well
as correctable and incorrigible, specific and ambiguous.
One can partially agree with the proposal of I.V.
Abrosimov on violations of the law that entail the
inadmissibility of evidence, this classification is more
related to the violation of the requirements of the
criminal procedure law, which regulates the procedure
for collecting, securing and verifying evidence during
the trial. preparation for the production of investigative
actions and their implementation.
It should be noted here that, as O.Ya. Mamedov rightly
noted, the phrase “other evidence obtained in violation
of the requirements of this Code” in the Criminal
Procedure Law cannot provide for all violations of
procedural forms that affect the recognition. of
collected evidence as inadmissible. Because there can
be many such violations in different types and forms,
and they can be observed at any stage of the criminal
process.
An opinion close to the opinion of O.Ya. Mamedov was
also expressed by E.A. Karyakin, who, considering it
impossible to establish restrictions on the list of
evidence collected in violation of the requirements of
the Criminal Procedure Code, provided a more detailed
open list, which In view of the majority of types of
violations of the law, evidence was collected in the
following ways:
1
) using coercion, threats, deception or other illegal
actions;
2
) as a result of an error by a person participating in the
trial, caused by
a failure to explain to him his rights and obligations, an
incomplete explanation or an incorrect explanation;
3
) as a result of receiving information from an unknown
source or from
a source that cannot be established in court;
4
) due to the participation of a person who should be
refused investigation;
5
) as a result of the investigative action being carried
out by a person who does not have the right to initiate
this criminal case;
6
) due to another significant violation of the procedure
for carrying out an investigative action.
V.S. Balakshin recommended dividing (differentiating)
violations of the criminal procedure law that are
grounds for recognizing evidence as inadmissible:
a) unconditionally recognized, that is, without
additional conditions, which
leads to recognizing the evidence as inadmissible;
b) conditionally evaluative, that is, even if they have a
conditionally consistent connection with the reliability
of the evidence, in themselves they do not cause
doubts in the subjects of the assessment about the
inadmissibility of the evidence or its reliability or
relativity, as well as violations that can conclude about
the admissibility of evidence only on the basis of the
results of the study and assessment of these doubts.
One can fully agree with the classification of V.S.
Balakshin violations of the criminal procedure law,
which are the basis for recognizing evidence as
inadmissible. However, this classification seems more
general, since all evidence collected in a criminal case
is considered acceptable or inadmissible depending on
the results of its examination and assessment.
Here we consider it permissible to recall the arguments
of V. I. Tolmosov against the concept of “cruel
exclusion” of evidence obtained in violation of the law.
According to the content of these arguments, if the
collected evidence is insignificant, that is, if it is possible
to eliminate these violations, it is necessary to pay
attention to the implementation of actions aimed at
preventing the loss or distortion of the collected
information.
In our opinion, violations of the requirements of the
criminal procedure law, leading to the recognition of
the collected evidence as inadmissible, should be
classified as follows:
1
) violations of the requirements established by the
Criminal Procedure Code regarding the composition
and procedural status of persons participating in
investigative actions, judicial actions and operational-
search activities;
2
) serious violations of the procedure established by
law for investigation, court actions and operational-
search activities carried out for the purpose of
collecting real information;
3
) violations of the procedure for procedural
registration of the results of investigations, court
actions and operational-search activities;
4
) Violations of the requirements of the CPC regulating
the collection of real data, their procedural registration
and verification;
5
) violation of the procedure for initiating a criminal
case, combining criminal cases, separating them into
separate cases, terminating inquiry and investigation
and restoring them.
In our opinion, the subjects of proof are obliged to
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strictly observe the following conditions for recognizing
evidence as admissible in Part 3 of Article 95 of the
Criminal Procedure Code in order to prevent similar
violations in the future:
1
) collecting evidence in the manner prescribed by law
(Article 87 of the Criminal Procedure Code);
2
) taking measures to protect the rights and legitimate
interests of individuals and legal entities in the process
of collecting evidence and verification (Article 88 of the
Criminal Procedure Code);
3
) ensuring that evidence is entered into the minutes of
the investigative or court hearing (Article 90 of the
Criminal Procedure Code) and that this document is
signed by the participants and persons authorized to
conduct the process (Article 92 of the Criminal
Procedure Code);
4
) in cases of refusal to sign the protocol or the
impossibility of signing it, take measures to confirm this
provision in the prescribed manner (Article 93 of the
Criminal Procedure Code);
5
) rely only on thoroughly, fully, comprehensively and
objectively examined evidence when making a decision
on the case (Article 94 of the Criminal Procedure Code).
It should be said that, according to the requirements
established by Article 95-1 of the Criminal Procedure
Code, if factual information:
by illegal methods or by depriving participants in
criminal proceedings of rights guaranteed by law, or by
limiting these rights;
if they are obtained in violation of the requirements of
this Code, they are considered inadmissible as
evidence.
The legislator lists the following 6 violations when he
says “obtained in violation of the requirements of this
Code”:
1
) the use of torture and other cruel, inhuman or
degrading
treatment
or
punishment
against
participants in criminal proceedings or their close
relatives;
2
) by falsifying (forging) them;
3
) in violation of the rights of a suspect, accused or
defendant to defense, as well as the right to use the
services of an interpreter;
4
) as a result of a procedural action in a criminal case
by a person who does not have the right to conduct the
said criminal case;
5
) from an unknown source or from a source that
cannot be established during criminal proceedings;
6
) if they are taken from the testimony of a victim,
witness, suspect, accused, defendant during an inquiry,
preliminary investigation, which is not confirmed by a
totality of evidence in court, they are considered
inadmissible as evidence.
It should be noted that the list of reasons for
recognizing the data collected in the CPC as
inadmissible as evidence is not complete and contains
some gaps.
In particular, in Article 95-1 of the Criminal Procedure
Code, the issue of circumstances that prevent
participation in criminal proceedings was left outside
the attention of the legislator.
In addition, in the CPC “Circumstances that prevent
participation in criminal proceedings. Article 76-80,
included in Chapter 7 under the title “Refusal”, also
indicates what the consequences will be if a judge,
people's adviser, prosecutor, investigator, investigator,
official of the div conducting the pre-investigation
check, secretary of the court session, etc. No
procedural rules have been established
regarding such a possibility.
According to the content of Articles 76-80 of the
Criminal Procedure Code, it is indicated that
participants in criminal proceedings must be removed
and cannot participate in the case under any
circumstances that prevent their participation in the
case.
It is worth noting that circumstances that prevent
participation in criminal proceedings raise doubts not
only in establishing the truth in the case, but also in the
impartiality and fairness of the participant in the
criminal process.
Professor B.Kh. Pulatov rightly
noted that “in the
presence of circumstances that prevent his
participation in the case, that is, those provided for in
Articles
76
-
80
of the Criminal Procedure Code, the prosecutor
himself, as well as in the presence of the noted factors,
an expert, specialist, translator, impartial, defender,
including the victim, civil plaintiff or civil defendant,
must refuse a representative. The statement of refusal
must be substantiated. Submission of motions and
their resolution is one of the important situations of the
preparatory part of the court hearing”.
After all, cases of failure to renounce the subjects of
proof or a participant in criminal proceedings in the
presence of circumstances provided for in Articles
76
-
80
of the Criminal Procedure Code not only raise
doubts about the impartiality and fairness of the
participants in the criminal process, but also affect the
assessment of the admissibility of evidence in the
future.
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When we analyzed the norms of criminal procedure
legislation of foreign countries in this matter, we saw
that there is some positive experience.
In particular, Article 105 of the Criminal Procedure
Code of the Republic of Armenia, which is called
“materials considered inadmissible as evidence”,
regulates the issue of not using as admissible evidence
materials collected by persons who have circumstances
that prevent them from participating in criminal
proceedings.
Moreover, in the Republic of Armenia, evidence
collected by persons who have circumstances that
prevent them from participating in criminal
proceedings is considered inadmissible, and the use of
these materials in the process of proving any of the
grounds for accusation and conviction is prohibited.
It can be noted that a norm similar to this norm is
defined somewhat differently in the Criminal
Procedure Code of the Republic of Moldova. In
particular, according to Article 94 of the Criminal
Procedure Code of the Republic of Moldova, which is
called information that is considered inadmissible as
evidence, it is determined that information collected by
a person who knows for sure that there are
circumstances that prevent him from participating in
criminal proceedings, depending on the circumstances
of the case, is considered inadmissible. Based on this, it
can be said that the Moldovan legislation clearly knows
that there are circumstances that prevent a person
empowered to collect evidence from participating in
criminal proceedings, and that the information
collected by him is considered inadmissible, regardless
of whether it is collected in compliance with the
procedure and conditions established by law, and in
any of them it is further clearly regulated that it cannot
be used as evidence. In addition to the above-
mentioned countries, the issue of non-use as
admissible evidence of evidence collected by persons
who have circumstances that prevent their
participation in criminal proceedings is also defined in
Article 125 of the Criminal Procedure Code of the
Republic of Azerbaijan. and these procedural rules are
similar to the rules defined in Article 105 of the Criminal
Procedure Code of the Republic of Armenia, which is
set out in a similar way.
In our opinion, in the criminal procedure legislation of
the Republic of Armenia, and Azerbaijan it is advisable
to transfer to our national legislation the issue of non-
use as admissible evidence of evidence collected by
persons who have circumstances that prevent their
participation in criminal proceedings.
Therefore, it is advisable to add a new clause to Part
One of Article 95-1 of the Criminal Procedure Code and
state it as follows:
“if they are collected by persons who have
circumstances that prevent their participation in
criminal proceedings.”
In our opinion, the introduction of this amendment to
the CPC will prevent future problems with assessing the
admissibility of evidence and will not raise doubts
about the impartiality and fairness of the collected
data.
It is appropriate to note here that in the first paragraph
of Part One of Article 95-1 of the Criminal Procedure
Code, if torture and other cruel, inhuman or degrading
treatment or punishment are applied to participants in
criminal proceedings or their close relatives, they are
considered inadmissible as established evidence.
However, in the modern world, in the process of proof,
there are also cases of receiving instructions or
confirmation of a situation using drugs or technologies
that affect a person’s memory, cont
rary to modern
scientific concepts. No one can guarantee that such
cases will not be observed in our country in the future.
In addition, drugs or technologies that affect a person’s
memory may not cause him pain and be completely
harmless to his health.
In our opinion, it is appropriate to evaluate the
collected information in cases of receiving instructions
or confirming a situation using any tools or
technologies that contradict modern scientific
knowledge and affect human memory.
Similar procedural rules regarding the admissibility of
evidence can be observed in the criminal procedure
legislation of a number of countries.
In particular, Article 61 of the Criminal Procedure Code
of the Republic of Estonia, known as the assessment of
evidence, establishes t
hat “it is prohibited to use
torture and other forms of violence against a person”
when collecting evidence” or use methods that destroy
the memory and dignity of a person, and that such
evidence is considered inadmissible.
Procedural rules on the inadmissibility of evidence
collected using methods in the process of proof that are
contrary to modern scientific knowledge are adopted in
Armenia (Article 105 , of the Criminal Procedure Code),
Moldova (Article 94 ,of the Criminal Procedure Code),
Azerbaijan (Article 125 of the Criminal Procedure
Code) and Tajikistan (Article 88 of the Criminal
Procedure Code) can be observed in the criminal
procedure legislation of the Republics.
In our opinion, it is advisable to transfer this positive
experience to our national legislation and, for this
purpose, set out the first paragraph of Part One of
Article 95-1 of the Criminal Procedure Code in the
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International Journal of Law And Criminology (ISSN: 2771-2214)
following new version:
“the use of any means or technologies that are contrary
to modern scientific knowledge, affecting human
memory, as well as torture and other cruel, inhuman,
degrading treatment and punishment in relation to
participants in criminal proceedings or their close
relatives.”
Here it is worth noting that Article 95-1 of the Criminal
Procedure Code regulates only the issue of the
inadmissibility of evidence and does not determine the
procedure for the further use of this evidence or, in
other words, the consequences. on recognizing
evidence as inadmissible. In our opinion, in the future,
in order to achieve a reduction in errors and
shortcomings associated with the admissibility of
evidence or further increase the responsibility of the
subjects of proof in this regard, procedural information
that factual information obtained in Cases of violations
of the law in the current Criminal Procedure Code can
be used as admissible for the purpose of proving the
guilt of the persons who committed them, during the
investigation of violations of the law and in a criminal
case, it is advisable to establish rules.
It can be noted that such procedural rules are defined
in the criminal procedure legislation of a number of
countries, in particular:
Article 94 of the Criminal Procedure Code of the
Republic
of
Moldova,
entitled
“Inadmissible
information as evidence”, provides that
information
obtained in violation of the law may be used as
admissible evidence in the future as evidence
confirming the facts of the relevant violation and the
guilt of the persons who committed it.
Provisions that evidence collected in violation of the
procedure established by the criminal procedure law
and recognized as inadmissible based on the results of
the assessment may be used as admissible evidence to
prove the guilt of the persons who committed the facts
of this violation Ukraine (Article 86 , of the Criminal
Procedure Code), Moldova (Article 94 of the Criminal
Procedure Code), Tajikistan (Article 88-1 of the
Criminal Procedure Code), Azerbaijan (Article 125 of
the Criminal Procedure Code) Republics that It can be
considered a positive experience that this is defined in
the criminal procedure legislation.
In our opinion, it is advisable to transfer this positive
experience to national legislation and supplement
Article 95-1 of the Criminal Code with a new part of the
following content:
“Mat
erials obtained through violations of the law, as
provided for in Article 95-1 of this Code, may be used
as admissible evidence to prove the facts of the
relevant violations and the guilt of the persons who
committed them.”
In our opinion, the introduction of a new article in the
Criminal Procedure Code on ensuring the admissibility
of evidence effectively serves to prevent violations of
the law by entities collecting, procedurally processing
and verifying evidence.
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