The American Journal of Political Science Law and Criminology
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TYPE
Original Research
PAGE NO.
67-72
10.37547/tajpslc/Volume07Issue06-13
OPEN ACCESS
SUBMITED
30 April 2025
ACCEPTED
28 May 2025
PUBLISHED
30 June 2025
VOLUME
Vol.07 Issue06 2025
CITATION
Otkir Abdugaffarovich Mamadaliev. (2025). Improving judicial mechanisms
for eliminating pre-trial procedural errors in the criminal process of
Uzbekistan. The American Journal of Political Science Law and Criminology,
7(06), 67
–
https://doi.org/10.37547/tajpslc/Volume07Issue06-13
COPYRIGHT
© 2025 Original content from this work may be used under the terms
of the creative commons attributes 4.0 License.
Improving judicial
mechanisms for eliminating
pre-trial procedural errors
in the criminal process of
Uzbekistan
Otkir Abdugaffarovich Mamadaliev
Independent researcher at Supreme School of Judges under the Supreme
Judicial Council of the Republic of Uzbekistan
Abstract:
This article addresses the systemic issues of
procedural errors in the pre-trial phase of criminal
proceedings in Uzbekistan. The research focuses on the
theoretical nature of such errors, their classification,
and their implications for judicial fairness and legal
integrity. Drawing from domestic legal norms, empirical
data, and comparative international practice, the article
proposes
reforms
for
strengthening
judicial
mechanisms to detect and eliminate these errors
effectively. The goal is to enhance procedural
safeguards and ensure compliance with fundamental
rights during criminal prosecution.
Keywords:
Procedural errors, criminal justice, pre-trial
investigation, judicial oversight, legal reform, human
rights.
Introduction:
The rule of law and protection of
individual rights are foundational principles of any
modern legal system. In Uzbekistan, recent criminal
justice reforms have sought to reduce wrongful
convictions, improve the effectiveness of courts, and
align national practice with international standards.
However, a persistent challenge remains: procedural
errors committed during the pre-trial phase, which can
compromise the legality and fairness of trials.
This article, based on a dissertation study, investigates
the scope and impact of such errors and judicial
approaches to eliminating them. It argues that without
institutional mechanisms for systematic identification
and correction of procedural flaws, the integrity of the
criminal justice system is jeopardized.
METHODOLOGY
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This study adopts a doctrinal and comparative legal
methodology, supplemented by analysis of statistical
data from national court practices and relevant
international instruments such as the International
Covenant on Civil and Political Rights. Legal theory,
particularly the works of Uzbek and CIS scholars, is
employed to conceptualize 'procedural error' as a
violation of procedural form that may or may not be
unlawful but always undermines judicial goals.
The research also incorporates qualitative insights
from empirical surveys conducted among 410 legal
practitioners, judges, and investigators. These
methods offer both depth and context to the
assessment of how procedural errors arise, are
detected, and are addressed by the judiciary.
Defining Procedural Errors in Pre-Trial Proceedings
In the criminal procedure of Uzbekistan, procedural
errors in the pre-trial phase refer to any improper
application of the procedural norms established by the
Criminal Procedure Code (CPC). These errors are
committed
during
inquiry,
investigation,
or
prosecutorial review, and can include: unlawful
initiation of criminal proceedings,
improper detention without judicial sanction,
ignoring exculpatory evidence, violations of suspects'
rights,
misclassification of the legal nature of the offense.
Errors may be classified into:
technical errors, substantive errors,
tactical errors, intentional or negligent errors.
According to Article 11(2) of theCPC, even inadvertent
deviations from established procedures are subject to
judicial scrutiny. Scholars such as M.E. Puchkovskaya
argue that the gravity of an error lies in its impact on
fairness, not just its legality.
Judicial Practice in Uzbekistan
The analysis of judicial practice in Uzbekistan reveals a
concerning trend: despite improvements in legislation,
procedural errors remain frequent. In 2023 alone,
courts issued over 2655 private rulings in connection
with violations identified during pre-trial stages.
Additionally, 13,522 charges were dismissed or
reclassified before the main trial due to insufficient
evidence or legal defects in the investigation.
Pre-trial procedural errors not only hinder the
achievement of the goals of criminal proceedings, but
also negatively impact the effectiveness of law
enforcement agencies. In reality, violations of the
procedure established in the criminal procedure
legislation
—
designed to uphold the rule of law,
prevent crimes, and protect the interests of
individuals, the state, and society
—
can lead not only to
procedural but also to significant socio-political
consequences.
Such errors may result in the following outcomes:
•
Prosecution of an innocent person or,
conversely, evasion of liability by the actual offender;
•
Unjustified termination or suspension of a
criminal case;
•
Issuance of an acquittal;
•
Court rulings requiring additional procedural
actions;
•
Violation of the rights of participants in the
proceedings, including both the accused and victims.
Pre-trial procedural errors lead not only to procedural
consequences (such as acquittals or the return of cases
to investigative bodies for additional inquiry) but also to
social consequences, including the formation of
negative public opinion regarding the performance of
law enforcement agencies and the state’s efforts to
combat crime.
Another critical issue is the lack of criteria for
determining the severity of a procedural error, which
creates difficulties in distinguishing such errors from
criminal offenses. This legal ambiguity may allow
intentional violations of the law
—
especially those
infringing on individual rights and freedoms
—
to be
disguised as mere “errors,” undermining accountability.
Although the CPC does not define the concept of an
error, Article 401¹ of the Criminal Procedure Code refers
to typographical, textual, and arithmetic mistakes as
technical deficiencies. Based on this, the CPC allows
procedural errors to be grouped into the following
categories:
1.
Errors in applying provisions of the Criminal
Code;
2.
Errors in applying norms of the Criminal
Procedure Code;
3.
Technical errors.
From the perspective of their content, procedural errors
can be further classified as:
1.
Errors related to the incompleteness or bias of
the preliminary investigation;
2.
Errors that involve restriction of a person's
constitutional rights and freedoms;
3.
Errors associated with failure to comply with
procedural form;
4.
Errors in the incorrect application of substantive
criminal law.
Based on the possibility of elimination, procedural
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errors are divided into correctable and uncorrectable
ones. In terms of procedural stage, correctable pre-
trial errors can be addressed:
1.
At the pre-trial investigation stage;
2.
At the stage of preparation for trial in the court
of first instance;
3.
During the trial stage;
4.
In appellate or cassation proceedings.
Accordingly,
errors
occurring
during
pre-trial
proceedings can be classified as:
•
Criminal procedural errors
•
Errors in criminal law
•
Organizational and tactical errors
, including
incorrect formulation of investigative versions, poor
planning or implementation of investigative actions,
misidentification of participants, and improper
documentation of results.
By procedural nature:
•
Procedural errors
Non-procedural (tactical) errors
By cognitive approach and evaluation outcome:
Errors in establishing the factual circumstances of the
case;
Errors in assessing established facts or in legal
qualification.
By procedural form, errors can be divided into:
Errors in procedural decisions (e.g., indictment,
termination, suspension, drafting of the indictment
conclusion);
Errors in carrying out procedural actions (e.g.,
searches, interrogations).
In summary, the most frequent forms of procedural
errors at the pre-trial stage include:
Depriving participants of their procedural rights or
unlawfully restricting them, such as:
Failing to acquaint the accused with case materials
upon completion of investigation;
Violating the right to use one’s native language or to
receive interpretation services;
Conducting investigative actions without the required
presence of defense counsel or legal representative;
Initiating investigation despite existing legal grounds
for exclusion;
Violations in drafting procedural decisions related to
the indictment or charging documents.
However, courts in Uzbekistan are limited in their
ability to rectify these errors. The CPC does not
currently provide for:
Judicial annulment of unlawful procedural acts at the
investigative stage;
Mandatory correction of procedural violations
identified during preliminary hearings;
Binding force of judicial findings related to investigative
misconduct.
Judges can issue private rulings (per Articles 416
–
417 of
the CPC), return cases to prosecutors, or reject
evidence, but these actions often lack preventative or
corrective strength. The absence of a systemic model for
judicial oversight undermines the consistency and
authority of court interventions.
Moreover, judicial inertia is often compounded by
prosecutorial resistance to oversight and the lack of
accountability for repeated procedural misconduct.
Surveyed judges noted that many errors, particularly in
the qualification of criminal charges and application of
coercive measures, recur due to insufficient legal
reasoning in pre-trial acts.
Another concern is the ineffective implementation of
judicial rulings. Despite the issuance of thousands of
private rulings annually, the follow-up mechanisms
ensuring compliance remain weak. This undermines the
corrective potential of judicial responses and
perpetuates a culture of impunity in the pre-trial
process.
The lack of transparency in investigative actions further
complicates judicial review. For example, investigative
authorities often withhold or delay the submission of
key materials to the court, limiting the judge’s ability to
verify legality. Additionally, courts are not always
equipped with sufficient time and procedural authority
to investigate complex pre-trial conduct fully.
This evidences the systemic nature of the problem and
demonstrates that addressing procedural errors
requires more than formal powers
—
it demands
institutional cooperation, enhanced legal culture, and
procedural clarity.
To differentiate serious violations of the CPC, several
classification criteria have been developed, including:
1.
The identity of the subject who committed the
violation (e.g., investigator, interrogator, prosecutor);
2.
The stage of the criminal process at which the
violation occurred;
3.
Whether
the
error
is
correctable
or
uncorrectable;
4.
Whether it involves a single error or a
combination of multiple violations;
5.
The nature and severity of its legal
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consequences.
The list of serious violations may be partly stipulated in
the CPC (mandatory part) and partly defined by judicial
decisions such as plenary resolutions (advisory part).
However, the non-statutory part does not have binding
legal force for law enforcers. Thus, the determination
of what constitutes a serious violation not explicitly
listed in the law must depend on:
1.
The factual circumstances of the specific case;
2.
The extent of restriction on the rights of the
participants in the process;
3.
The degree to which the error obstructed
comprehensive judicial review;
4.
The degree of its influence on the legality,
reasonableness, and fairness of the final decision.
The court's authority to eliminate procedural errors
committed during the pre-trial stage is defined by the
following limitations:
•
The court must not exercise prosecutorial
powers under any circumstances;
•
The court may only address errors using
procedural instruments;
•
The elimination of procedural errors must not
infringe on the rights of participants in the process.
While the CPC mandates that the court seek the truth,
it also obliges the court to identify and eliminate
procedural violations that obstruct this objective, even
if they were committed by the investigating div. The
public nature of the criminal process and the court’s
responsibility for delivering justice impose on the
judiciary an obligation to actively employ procedural
tools to correct errors
—
regardless of the defense's
initiative.
Survey results among investigators show that criminal
procedure norms are perceived in two categories:
1. Mandatory norms
, where failure to comply leads to
adverse consequences for investigators (disciplinary
actions). This includes ensuring the presence of
defense counsel or witnesses during specific actions,
and strict compliance with procedural time limits
(especially detention periods). Violations can result in
evidence being deemed inadmissible, leading to
acquittals and professional consequences for the
investigator.
2. Non-mandatory norms
, whose violation does not
result in direct consequences. This includes explaining
rights to participants, the presumption of innocence,
and respect for dignity. These norms are sometimes
undervalued and treated as non-binding declarations.
The causes of investigative errors may include lack of
experience, legal nihilism, or unjustified classification of
norms as either essential or non-essential. Many
investigators tend to subjectively differentiate between
"important" and "unimportant" rules, treating some
procedural guarantees as merely declarative and thus
non-mandatory in practice.
Comparative Perspectives: CIS and Beyond
One of the most significant contemporary challenges
facing the criminal procedure systems of CIS countries is
the reform of the inherited Soviet institution of
“supplementary investigation” and the modernization
of procedural remedies for correcting errors in court.
Although there is broad consensus that supplementary
investigation is incompatible with the adversarial
principle and the modern judicial function, creating a
replacement mechanism has proven technically
difficult. Experience in some jurisdictions has shown
that such reform cannot be achieved without broader
restructuring of the pre-trial procedure.
For example, the new Criminal Procedure Code (CPC) of
the Russian Federation eliminated the supplementary
investigation but introduced a limited procedure known
as "returning the case to the prosecutor" for correcting
formal defects. This applies in cases where:
1.
The indictment or prosecutorial act violates CPC
requirements;
2.
The indictment was not served to the accused;
3.
A bill of indictment is required in cases involving
compulsory medical measures;
4.
Grounds for consolidation of multiple cases
exist;
5.
The accused was not informed of their rights
during familiarization with the case materials.
However, judicial practice revealed that this mechanism
is insufficient to resolve issues beyond the technical
deficiencies of the indictment, particularly when the
charges require requalification to a more serious
offense. As a result, the absence of a procedural
mechanism
allowing
courts
to
initiate
such
requalification led to violations of victims’ rights. This
was addressed through the Russian Constitutional
Court’s decision of December 8, 2003, and further
reinforced by the Supreme Court’s resolution of March
5, 2004. Ultimately, the supplementary investigation
was reintroduced into the CPC under the new label of
“returning the case
to the prosecutor,” by the Law of
December 2, 2008.
Following another Constitutional Court ruling (July 2,
2013), the CPC was amended again (July 21, 2014),
introducing two grounds under Article 237(1)(6) for
returning the case to the prosecutor: (a) When the
indictment’s factual basis requires requalification of the
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act as a more serious crime; (b) When, during
preliminary hearings or trial, facts emerge indicating
the need for more serious qualification of the act.
A study of other CIS countries shows a general trend
toward abandoning the institution of supplementary
investigation by narrowing or differentiating the
grounds
for
returning
a
case.
However,
implementation has varied technically by jurisdiction.
For instance, Article 301(2) of the CPC of Belarus allows
the court to requalify the charge during the trial. In
Belarus and Azerbaijan, there is a closed list of serious
procedural violations at the pre-trial stage, while
Kazakhstan, Kyrgyzstan, and Tajikistan allow for
rectifying such violations through returning the case to
the prosecutor.
In civil law systems, serious violations of the CPC are
increasingly addressed through judicial review during
the pre-trial stage itself. In these systems, the problem
of incomplete investigation is addressed not by
returning the case but by instructing the investigative
div to conduct specific procedural actions.
The civil law tradition avoids the term "serious
procedural violation" and instead refers to "violation of
the right to a fair trial." The case law of the European
Court of Human Rights (ECtHR) prioritizes legal
certainty over the correction of procedural defects
unless they rise to the level of a "fundamental defect"
or a "miscarriage of justice."
Errors made by state authorities should never
disadvantage the accused; the burden of such risks
must lie with the state. The ECtHR evaluates not
isolated procedural actions, but the overall fairness of
the proceedings
—i.e., “the fairness of the proceedings
taken as a whole.” Accordingly, minor violations may
be remedied at later stages, and only structural
violations justify annulment of the judgment.
Civil law systems differentiate between:
1. Unconditional violations
—
which, if proven,
mandate annulment (mostly in Eastern European and
CIS jurisdictions);
2. Conditional violations
—
which, in Western Europe,
serve only as grounds for appeal or cassation.
In contrast, in common law systems (Anglo-Saxon legal
traditions), the concept of “serious procedural
violation” is largely irrelevant. There is no CPC in the
conventional sense; regulation of pre-trial conduct
(e.g., by the police) is limited to cases involving physical
detention or collection of evidence violating
fundamental rights. In those cases, the remedy is not
retrial or return to prosecution, but release from
custody or exclusion of unlawfully obtained evidence.
Uzbekistan can draw valuable lessons from other
jurisdictions:
-Russia and Kazakhstan have introduced pre-trial
judicial review mechanisms;
- Germany integrates judicial authorization into every
significant pre-trial decision;
-The United States employs the doctrine of due process
to reverse or suppress outcomes derived from unlawful
procedures.
These systems emphasize the role of courts not only in
adjudicating guilt but also in ensuring procedural
regularity from the very beginning of criminal
proceedings.
Proposed Reforms for Uzbekistan
To bring national practice in line with international
standards, the following legal and institutional reforms
are proposed:
1. Amend the CPC
to explicitly empower courts to annul
unlawful investigative actions, including pre-trial
detention, charges, or evidence gathering.
2. Strengthen preliminary hearings
by giving judges
authority to evaluate the procedural legality of all pre-
trial decisions.
3. Codify judicial instructions
that compel prosecutors
or investigators to correct identified violations.
4. Clarify prosecutorial discretion
to prevent arbitrary
actions and ensure consistent enforcement of legal
standards.
5. Enhance training programs
for judges and legal
professionals to develop skills in identifying and
addressing procedural violations.
6. Implement compliance monitoring
for judicial rulings
to ensure their enforcement by investigative
authorities.
7. Introduce a centralized register
of private rulings and
court findings to analyze trends and target systemic
misconduct.
These reforms would position the judiciary as an active
institutional guarantor of procedural justice, aligned
with Uzbekistan’s constitutional commitments and
international obligations.
CONCLUSION
Procedural errors committed at the pre-trial stage
represent a major risk to the legitimacy and fairness of
the criminal justice system in Uzbekistan. By adopting
international best practices and empowering courts
with the tools to monitor and rectify procedural flaws,
Uzbekistan can advance toward a more just and rights-
oriented criminal process.
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