influencing their position vis-à-vis their client.
Notably, a significant proportion of the amendments and additions introduced to the Criminal Procedure Code (CPC) in recent years have specifically focused on enhancing the right to defense. These changes have aligned the national legislation with the most advanced international legal standards, facilitating the implementation of «Miranda» and «Habeas Corpus Act» principles. Concurrently, the requirements for engaging in advocacy have undergone substantial modifications. Extensive reforms were introduced through the Law of the Republic of Uzbekistan dated December 31, 2008, «On Amendments and Additions to Certain Legislative Acts of the Republic of Uzbekistan in connection with the Improvement of the Advocacy Institute» [5]. This specific law redefined the legal status of lawyers, granting them the authority to meet with their clients an unlimited number of times and for unlimited duration, without the permission of any official. Furthermore, it empowered them to collect and present information usable as evidence in accordance with Article 87, Part 2 of the CPC.
Despite these advancements, a primary challenge in the implementation of the defense function remains the effective exercise of the powers granted to defense lawyers by law.
Article 28, Part 1 of the Constitution of the Republic of Uzbekistan posits the right to defense for participants in criminal proceedings as one of their fundamental rights: «An individual accused of committing a crime shall be considered innocent until his or her guilt is proven in a manner prescribed by law through a public trial and established by a legally effective court verdict. The accused shall be provided with all opportunities for self-defense» [6]. This constitutional norm, therefore, reinforces the principle that every individual has the right to defend their rights and freedoms by any means not prohibited by law. This fundamental provision of our nation's Basic Law implies that, despite state guarantees of rights and freedoms for every person and citizen, each individual can actively and independently assert their interests.
With the entry into force of the Criminal Procedure Code of the Republic of Uzbekistan, and the Laws «On Advocacy» dated December 27, 1996, and «On Guarantees of Advocacy Activities and Social Protection of Advocates» dated December 25, 1998, the defense side gained broad powers from the earliest stages of the investigation. For instance, in accordance with Article 53, Part 1, and Article 87, Part 2 of the CPC, the defense lawyer is granted the right to collect and present information that can be used as evidence. Furthermore, pursuant to Article 69 of the CPC, they are given the right to involve a specialist in the manner prescribed by law. Additionally, according to Article 111, Part 2, Clause 2, and Article 487, Part 2, Clause 8 of the CPC, testimonies given by the suspect or accused during pre-trial proceedings without the participation of a defense lawyer, including cases where they waived their right to a defense lawyer, shall be recognized as inadmissible evidence (a serious violation of the criminal procedural law) if these testimonies are not confirmed by the suspect or accused in court [7].
Therefore, the defense lawyer is considered the main subject exercising the defense function, as this role is typically carried out by advocates whose primary profession is providing legal assistance [8]. A defense lawyer is permitted to participate in the case from the moment an accusation is declared against a citizen, or from the moment a decision recognizing them as a suspect is announced, or from the moment they are detained.
Our current legislation guarantees the suspect's right to have a defense lawyer from the moment they are detained or informed of the decision recognizing them as a suspect, as well as the right to private meetings with the lawyer without limitation on the number or duration of such meetings. A defense lawyer is a person authorized to exercise the protection of the rights and legitimate interests of suspects, accused persons, and defendants in the manner prescribed by law, and to provide them with necessary legal assistance. A defense lawyer is permitted to participate in the case at any stage of the criminal process, and in case of detention, from the moment the person's right to freedom of movement is practically restricted. Even close relatives of the suspect may be permitted to participate as a defense lawyer alongside an advocate, upon the petition of the suspect, accused person, or defendant, by a decision of the inquirer, investigator, or a court ruling.
The defense lawyer is invited by the suspect, or by other persons with the suspect's request or consent. At the suspect's request, the inquirer, investigator, prosecutor, or court ensures the participation of a defense lawyer in the case. If the chosen defense lawyer is unable to commence participation in the case within twenty-four hours, the inquirer, investigator, prosecutor, or court recommends the suspect, accused, defendant, or their relatives to invite another defense lawyer or to apply to legal aid organizations designated by the Territorial Department of the Chamber of Advocates of the Republic of Uzbekistan to appoint a defense lawyer. The defense lawyer chosen by the suspect, accused, or defendant has the right to commence participation in the case at any time. The inquirer, investigator, or prosecutor handling the case has the right to fully or partially exempt the suspect from payment for legal assistance.
To guarantee the rights of the suspect at all stages of the criminal proceedings, they must be provided with the right to defense from the earliest stages of the process, or from the moment of detention if their freedom of movement is restricted. The existence of this right enables the suspect to defend themselves against the accusation by using all means provided by law [8]. The right of persons suspected of committing a crime to legal defense through an advocate is considered one of their fundamental rights. To answer the questions of when the defense function arises in criminal proceedings and what its essence consists of, it is expedient to review the opinions of legal scholars who have dealt with this issue.
According to Z. Zinatulinn, «The defense function in criminal proceedings arises with the emergence of the accusation (suspicion). Defense operates concurrently with the prosecution function at all stages of the criminal case where an accusation exists» [10]. Kalinkovskiy K.B. and V.D. Adamenko state, «If there is no accusation, then there is no need for defense» [11]. A.M. Larin also emphasizes, «As long as there is an accusation, and procedural coercion, there must be defense against it» [12].
According to Yu.І. Stetsovskiy, «Defense is a reaction against the accusation; wherever an accusation arises, defense operates there» [13]. Some scholars, including L.V. Makarov, disagree with the above views: «The defense function does not arise from the accusation, but is independent of it. Defense is the conscious, purposeful activity of the accused, the suspect, as well as their defense lawyer, legal representative, public defender, civil defendant, and their representative. These are precisely the subjects of the defense function. Sometimes, the defense function is understood not only as the protection of the rights and legitimate interests of persons who are materially responsible for the suspect (accused), but also as the protection of the rights and legitimate interests of the victim, civil plaintiff, and witnesses» [14].
The above-mentioned viewpoints regarding the defense function substantiate the existence of two opposing functions in criminal proceedings: prosecution and defense. These functions are adversarial in nature, and the emergence of one gives rise to the other. Therefore, defense, like prosecution, is an objective necessity in criminal justice administration, determined by the nature of this type of state activity.
An analysis of survey results conducted among investigators and lawyers reveals that 61% of lawyers believe conflicts arise during investigative actions. Furthermore, 52% of respondents attribute these conflicts to imperfections in existing legislation. Conversely, law enforcement officials predominantly consider lawyers to be the initiators of conflicts during preliminary investigations. Specifically, 61% of law enforcement officers believe that suspects (accused persons) alter their testimonies and deny specific facts after meeting with their defense lawyer, thereby instigating conflict during the preliminary investigation [15].
These problematic issues have yet to find resolution at a high academic theoretical level, nor have generally accepted algorithms for the activities of investigators and lawyers in the investigation of crimes been formed in law enforcement practice.
In accordance with Article 49, Part 1 of the Criminal Procedure Code (CPC), a defense lawyer is an individual authorized to protect the rights and legitimate interests of suspects, accused persons, and defendants in the manner prescribed by law, and to provide them with necessary legal assistance. It is important to note that providing legal assistance at the pre-trial stage implies activities aimed at
explaining the essence of the suspicion and accusation, clarifying rights and obligations to the suspect or accused, and collaborating to help them avoid errors and other inadmissible actions.
Pursuant to Article 49, Part 3 of the CPC, one of the suspect's, accused person's, or defendant's close relatives or legal representatives may be permitted to participate as a defense lawyer alongside an advocate, based on the request of the suspect, accused person, or defendant, and by a decision of the inquirer or investigator. Close relatives of the suspect or accused are understood to include their parents, siblings, spouse, children (including adopted children), grandchildren, as well as the spouse's parents and siblings.
Furthermore, the criminal procedural law stipulates that at the request of the suspect, accused person, or defendant, the inquirer, investigator, or prosecutor shall ensure the participation of a defense lawyer in the case (Article 50, Part 2 of the CPC). The CPC also provides an alternative option for ensuring the defense lawyer's participation. Specifically, according to Article 50, Part 3 of the CPC, if the chosen defense lawyer is unable to commence participation in the case within twenty- four hours, the inquirer, investigator, prosecutor, or court recommends that the suspect, accused person, defendant, or their relatives invite another defense lawyer or apply to legal aid structures designated by the Territorial Department of the Chamber of Advocates of the Republic of Uzbekistan to appoint a defense lawyer. The defense lawyer chosen by the suspect, accused, or defendant has the right to commence participation in the case at any time. The inquirer, investigator, or prosecutor handling the case has the right to fully or partially exempt the suspect, accused person, or defendant from payment for legal assistance. In such cases, the expenses for the lawyer's services shall be covered by the state in the manner determined by the Cabinet of Ministers (Article 50, Part 4 of the CPC).
It is important to note that the suspect or accused person has the right to invite several defense lawyers. The procedural rights of a defense lawyer participating in the inquiry and preliminary investigation are enshrined in Article 53, Part 1 of the CPC of the Republic of Uzbekistan. Accordingly, upon commencing participation in the case, the defense lawyer gains the following rights:
To know what the person whose interests they are defending is suspected or accused of; to participate in the case after presenting a lawyer's certificate and a warrant confirming authorization to handle a specific case.
To participate in the interrogation of the suspect, to be present when an accusation is brought against a person, and to participate in the interrogation of the accused, as well as in other investigative actions conducted with their participation, and to ask questions to suspects, accused persons, witnesses, experts, and specialists.
To participate with the permission of the inquirer or investigator during other investigative actions.
To provide written observations regarding the conduct of an investigative action in which they participated; to file petitions and challenges.
To collect and present information that can be used as evidence in accordance with Article 87, Part 2 of this Code.
To review documents related to procedural actions conducted with the participation of the suspect or accused, and after the preliminary investigation is completed, to review all materials of the criminal case and make necessary notes from them, obtain copies of materials and documents using technical means at their own expense, or record the information contained therein in another form.
If necessary for the exercise of defense, to access information containing state secrets, commercial secrets, or other secrets in the manner prescribed by law.
To file complaints against the actions and decisions of the inquirer, investigator, prosecutor, and court.
The investigator, after verifying the absence of circumstances preventing the lawyer's participation in the criminal case, makes a decision to admit them, and this moment marks the beginning of the lawyer's involvement in the preliminary investigation.
The right to defense, as one of the most crucial constitutional principles of the criminal process, grants the accused the opportunity to prove their innocence personally or with the assistance of a defense lawyer, and to present mitigating circumstances. Consequently, the current Criminal Procedure Code (CPC) of the Republic of Uzbekistan provides for the lawyer's involvement in the case from the earliest stages of the criminal process, which is a significant departure from previous periods.
As previously noted, since 2008, a defense lawyer, in accordance with Article 49, Part 4 of the CPC, can commence participation in the case at any stage of the criminal process. In the event of detention, participation is permitted from the moment the person's freedom of movement is practically restricted. However, in the period from 1999 to 2008, pursuant to Article 49, Part 3 of the CPC, a defense lawyer's entry into the case was permitted from the moment the accusation was declared against the citizen, or a decision recognizing them as a suspect was issued, or from the moment of their detention. It is known that there is a considerable time gap, often exceeding twenty-four hours, between these two legal facts. Thus, the investigator, concurrently with announcing the decision to formally charge the suspect as an accused person (Article 360, Part 4; Article 46, Part 1 of the CPC), must explain the right to defense to the accused and permit the defense lawyer to enter the case.
The CPC also provides for other timelines for the defense lawyer's entry into the case even before a decision to formally charge as an accused person is issued. According to Article 49, Part 3 of the CPC, a defense lawyer's participation in the preliminary investigation is allowed from the moment a criminal case is initiated against a specific person. This is another significant innovation in the current criminal procedural legislation, as a defense lawyer acquires a complex set of rights and obligations from the moment they enter the case. In this regard, the earlier the defense lawyer enters the process, the more crucial it is for the tactics of both sides. In cases where a criminal case is initiated against a specific person, this person has sufficient time to invite a desired defense lawyer and receive qualified legal assistance. Conversely, if a person acquires suspect status as a result of procedural detention, it becomes mandatory to invite a defense lawyer to the case (Article 49, Part 4; Article 48, Part 1 of the CPC) [16].
For instance, according to research conducted by O.І. Tsokolova in Russia on this matter, only 23% of suspects at the time of detention had agreements with a lawyer to enter the case as a defense lawyer at any time. Others were surprised by the investigator's (inquirer's) suggestion to invite a defense lawyer [17].
A similar study conducted by A.N. Reznikov in Russia to determine the moment of a defense lawyer's entry into a case during a suspect's detention revealed the following results: from the moment of detention - 7%; from the moment of delivery to the investigative body - 53%; before the first interrogation of the suspect - 19%; after the first interrogation of the suspect - 11% [18].
In a survey conducted by us among one hundred lawyers regarding the moment they entered a case when a suspect was detained, 11% reported entering from the moment of detention; 16% from the moment of delivery to the investigative body; 36% from the moment the detention report was drawn up; 29% directly before the first interrogation of the suspect; and 8% after the first interrogation of the suspect.
The investigator's (inquirer's) duties are simplified when the suspect themselves, their relatives, or other persons ensure the lawyer's participation within a short period. If an agreement is concluded directly with the suspect, the lawyer presents their certificate and a warrant confirming participation in the case to the investigator. In cases where an agreement is concluded with other persons, the investigator must ascertain that the suspect has given consent for this (Article 50, Part 1 of the CPC). In this situation, we believe it is advisable to obtain the suspect's written consent for the participation of this specific lawyer in the process. Contrary recommendations also exist: if the client does not agree to this lawyer handling the case, the refusal must be formalized in writing [19].
Results from the analysis of investigative practice indicate that the first private conversation between a lawyer and a detained person under their defense is crucial, and in some cases, tactically and psychologically decisive. Suspects in newly initiated criminal cases who have not yet met with a lawyer often provide confessional testimonies to the investigator. However, there are also instances
where the suspect, after their first official meeting with a lawyer, retracts previously given confessional testimonies. For this reason, many investigators, inquirers, and operational officers, under previously existing procedural conditions, attempted to postpone this meeting as long as possible, to communicate, converse, and conduct investigative and other actions with the suspected person without a lawyer, whenever feasible.
From a practical standpoint, restricting or delaying the commencement of a defense lawyer's participation in the case provides no advantage to the investigative body. This is because, according to Article 95, Part 3, and Article 111, Part 2, Clause 2 of the CPC, testimonies given by the suspect or accused without the participation of a defense lawyer - including cases where the right to a defense lawyer was waived - are deemed inadmissible evidence if not confirmed by the accused in court.
Therefore, the participation of a defense lawyer in the preliminary investigation, commencing from the stage of initiating a criminal case, and generally from the earliest possible periods, is in the interests not only of the defense but also of the prosecution. For this reason, it is necessary to choose more effective tactical methods for obtaining truthful testimony from the suspect, rather than resorting to unlawful resistance against the defense.
It should be emphasized that if the participation of a lawyer is not ensured by the suspect or other close persons at the time of detention, or if the suspect waives a defense lawyer due to an inability to pay, the investigator (inquirer), in accordance with Article 50, Part 4 of the CPC, is obliged to explain to the person under investigation that a lawyer can participate in the case and that all expenses related to their services will be compensated from the state budget.
In cases where the participation of a defense lawyer is mandatory, and also when the suspect has not waived the defense lawyer in writing, or when a defense lawyer has not been invited by the suspect themselves, their legal representative, or by other persons acting on the suspect's instruction and with their consent, the investigator (inquirer) ensures the participation of a defense lawyer in the criminal process in accordance with Article 51, Part 3 of the CPC. Specifically, this norm stipulates that if, at the request of the suspect, accused, or defendant, or with their consent, a defense lawyer has not been invited by other persons, the head of the legal aid structure designated by the Territorial Department of the Chamber of Advocates of the Republic of Uzbekistan must ensure the participation of a defense lawyer in the criminal case no later than four hours from the moment the decision of the inquirer, investigator, prosecutor to appoint a defense lawyer or the court's ruling is received by the Territorial Department of the Chamber of Advocates of the Republic of Uzbekistan. However, in such cases, the suspect does not have the right to choose the defense lawyer.
Furthermore, if a defense lawyer invited by a suspect for committing a crime fails to arrive within twenty-four hours of the suspect's detention, the inquirer or investigator shall take measures to appoint a defense lawyer. It is important to note that the waiting period for the defense lawyer is calculated from the moment the suspect is detained, not from the time the lawyer was called. In many cases, the inability of the contracted lawyer to arrive becomes known immediately, not necessarily within twenty-four hours. The chosen defense lawyer might be engaged in an ongoing court process, on vacation, ill, or in other locations. In such instances, the investigator (inquirer) is not obliged to wait for twenty-four hours and is authorized to immediately invite another defense lawyer to participate in the procedural actions.
Practical experience indicates situations where a suspect genuinely waives the right to qualified legal assistance. In these cases, the waiver of a defense lawyer is formalized in writing. If such a waiver occurs during investigative actions, it is documented in the protocol, in accordance with Article 52, Part 1 of the CPC.
When a suspect waives the appointed defense lawyer, investigative actions may proceed without their participation, with the exception of cases where the presence of a defense lawyer is mandatory (Article 50, Part 3 of the CPC). However, according to Article 52, Part 2 of the CPC, the waiver of a defense lawyer is not binding upon the inquirer, investigator, prosecutor, or court.
A conflict arises when a suspect completely waives the participation of a defense lawyer or the assistance of a specific appointed lawyer involved in the case. In our opinion, in such situations, the investigator (inquirer) should not yield to the suspect's will, because their duty is to provide the
suspect with a lawyer if the suspect themselves or other persons with their consent have not invited one. This is because, in this instance, the suspect's opinion and consent regarding the appointed lawyer's participation in the case are not of procedural significance. If the subject waives the assistance of a lawyer and the law does not stipulate the mandatory nature of this situation, the investigator must formalize the waiver in writing as a separate document or record it in the detention or investigative action protocol.
However, in cases stipulated in Article 51, Part 1 of the CPC, i.e., where the lawyer's participation is mandatory, the suspect's waiver of a defense lawyer may be obtained in writing. Nevertheless, despite the person under investigation waiving the right to qualified legal assistance, the lawyer must continue their participation in the procedural actions. In such cases, the investigator (inquirer) should tactically strive to resolve any conflict between representatives of the defense side.
It should be emphasized that, pursuant to Article 52, Part 3 of the CPC, the waiver of a defense lawyer does not deprive the suspect, accused, or defendant of the right to subsequently request permission for a defense lawyer to participate in the case. Such a request must be granted in all instances. A petition for the participation of a defense lawyer during the court investigation is resolved by the court, taking into account the circumstances of the case and in the interests of ensuring the defendant's right to defense. The defense lawyer's entry into the case during the court session does not serve as a basis for recommencing the court investigation.
Concurrently, the provisions of Article 53, Part 1 of the CPC also apply to cases where the defense lawyer enters the case from the moment other procedural coercive measures directly affecting the rights and freedoms of the person suspected of committing a crime are applied or procedural actions are carried out. In our opinion, such a basis stems from the following provision in Article 53, Part 1 of the CPC: The defense lawyer:... has the right to participate in the interrogation of the suspect, to be present when an accusation is brought against a person, and to participate in the interrogation of the accused, as well as in other investigative actions conducted with their participation, and to ask questions to suspects, accused persons, witnesses, experts, specialists; to participate with the permission of the inquirer or investigator during other investigative actions; to provide written observations regarding the conduct of an investigative action in which they participated; to file petitions and challenges...
Paragraph 16 of Resolution No. 17 of the Plenum of the Supreme Court of the Republic of Uzbekistan dated December 19, 2003, «On Judicial Practice Concerning the Application of Laws on Ensuring the Right to Defense for Suspects and Accused Persons,»emphasizes that the defense lawyer, according to law (Article 53 of the CPC):
Firstly, is provided with sufficient rights to protect the rights and interests of the person under their defense, and these rights cannot be restricted in any way by state bodies responsible for conducting the criminal case.
Secondly, the defense lawyer is entitled to participate in all investigative actions conducted with the participation of the person under their defense, including when the suspect or accused is being explained their rights and interrogated, during on-site verification of testimonies, experiments, identification procedures, confrontations, attestations, exhumations, seizures and searches, inspection of material evidence, attachment of property, and interrogations by the prosecutor.
Thirdly, from the moment the defense lawyer is granted permission to participate in the criminal case, they have the right to review the protocol of detention, the decision on applying a preventive measure, the protocols of investigative actions conducted with the participation of the suspect or accused, and other documents declared (or required to be declared) to the suspect or accused. This right of the defense lawyer also applies to reviewing protocols of investigative actions conducted before the person under their defense was recognized as a suspect or accused. The inquiry and investigative bodies are obliged to notify the defense lawyer in advance about the date, time, and place of investigative actions to be conducted with the participation of the suspect or accused.
Therefore, the right to legal assistance in criminal proceedings is guaranteed at any stage of the process. The right to defense acquires genuine legal significance when its implementation is guaranteed. Article 24 of the CPC places an obligation on the inquirer, investigator, prosecutor, and
court to explain the rights granted to the suspect, accused, and defendant, and to take measures aimed at ensuring they have a real opportunity to use all means and methods provided by law to defend themselves against the charges. This constitutes an important guarantee aimed at ensuring the right to defense in our criminal procedural legislation [20].
The content of ensuring the right to defense includes the following: The suspect, accused, and defendant, as participants in the criminal process, possess a range of procedural rights that enable them to effectively manage their own defense and protect their legitimate interests against the charges brought against them.
The suspect, accused, and defendant may avail themselves of the assistance of a defense lawyer, and in certain cases where the lawyer's participation is mandatory, they may receive this assistance directly on a legal basis.
The inquirer, investigator, prosecutor, and court are obliged to explain to the suspect, accused, and defendant their procedural rights and obligations, and to create conditions for them to manage their defense interests, personal rights, and material rights.
The inquirer, investigator, prosecutor, and court have obligations regarding the protection and ensuring of the personal and material rights of the suspect, accused, and defendant: not to disclose their private life if not necessary, not to commit acts that infringe upon the dignity and honor of these persons or endanger their health, to apply appropriate measures for establishing guardianship over their minor and orphaned children, to take measures to preserve the property and residence of these persons, and to arrange meetings with their relatives after the preliminary investigation is completed. According to procedural scholars in our country, ensuring the right to defense for suspects,
accused persons, and defendants includes:
a) The legal establishment of the obligations of inquiry bodies, investigation, prosecution, and the court aimed at protecting the interests of the suspect, accused, and defendant, as well as explaining and ensuring the exercise of their rights.
b) The legal establishment of means aimed at enabling the defense lawyer, either invited by the suspect, accused, or defendant, or appointed by the investigator or court, to use all means and methods of defense provided by law to identify circumstances that exonerate the suspect, accused, or defendant, or mitigate their liability.
c) The legal establishment of means that allow the suspect, accused, or defendant to restore their violated rights and to raise the issue of responsibility for officials who violated these rights.
Thus, ensuring the right to defense for the suspect, accused, and defendant acquires full meaning when combined with their procedural rights and the obligations of the inquirer, investigator, prosecutor, and court to ensure the exercise of these rights. However, ensuring the right to defense is not merely a single procedural right. Ensuring the right to defense for the suspect, accused, and defendant is understood as the sum total of all procedural rights that grant them the right to defend themselves against the charges, either personally or with the assistance of a defense lawyer. The suspect, accused, and defendant are provided with several rights to effectively exercise their right to defense directly. For this purpose, a person brought to criminal liability is granted rights such as knowing what they are accused of, giving testimonies and explanations, reviewing evidence, filing complaints against the actions of officials conducting the case, and reviewing case materials.
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