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THE LAW

OF THE REPUBLIC OF UZBEKISTAN

On Making Changes and Amendments to Certain Legislative Acts of the Republic of Uzbekistan in Connection with the Transfer of the Right to Issue a Sanction for Detention to Courts

Adopted by the Legislative Chamber 15.06.2007

Approved by the Senate 29.06.2007

Article 1. To make following changes and amendments to Criminal Procedural Code of the Republic of Uzbekistan approved by the Law of the Republic of Uzbekistan, dated September 22, 1994, ¹ 2013-XII (Bulletins of the Supreme Council of the Republic of Uzbekistan, 1995-¹ 2, item 5; Bulletin of Oliy Majlis of the Republic of Uzbekistan, 1995-¹ 12, item 269; 1997-¹ 2, item 56, ¹ 9, item 241; 1998, ¹ 5-6, item 102, ¹ 9, item 181; 1999-¹1, item 20, ¹5, item 124, ¹9, item 229; 2000, ¹5-6, item 153, ¹7-8, item 217; 2001, ¹1-2, items 11, 23, ¹9-10, items 165, 182; 2002, ¹ 9, item 165; 2003, ¹5, item 67; 2004, ¹1-2, item 18, ¹9, item 171; Bulletins of the Chambers of Oliy Majlis of the Republic of Uzbekistan, 2005, ¹12, item 418; 2006, ¹6, item 261):

1) part 2 of the article 18 shall be stated as following:

«No one can be arrested or detained in custody without court decision»;

2) part 1 of the article 29 shall be stated as following:

«Court has the following powers: consideration of petition, complaint and protest on the issues connected with application of preventive punishment in the form of custodial placement or prolongation of term of custodial placement with obligatory informing of the court, which made the decision on preventive punishment; preparation of criminal case for proceeding; trial of affairs and decision of verdict or acceptance of other decision; consideration of affairs in the appeal, cassation, supervising order; reference of verdict to execution»;

3) in article 36:

part 1 shall be stated as following:

"The inspector has the right: to institute proceedings and stop criminal case, to refuse in instituting proceedings; to detain and interrogate persons suspected in committing crime; to conduct investigation activities according to the present Code; to make decision on attraction of a person to participation in case as accused one and on choosing against him preventive punishment, except placement in custody; on the affairs accepted to the criminal process to give written assignments to inquiry bodies on conducting measures of inquiry and investigation; to call for assistance in certain investigation measures from inquiry bodies; petition for applying of a preventive punishment in the form of custodial placement and also to cancel or change a preventive punishment in accordance with article 240 of the present Code";

In part 3 the text "on choosing as a preventive punishment taking into custody" shall be replaced with "on application for revocation on using preventive measures in form of taking into custody";

4) part 1 of the article 217 shall be stated as following:

"Investigator, inspector, prosecutor, having applied towards suspected, accused person a measure of procedural compulsion in the form of detention or putting to medical institution for examination (and in case of the custodial placement - court) are obliged no later than in 24 hours to notify about it someone from members of his family, and at their absence - relatives or close persons, also to inform about it to his place of work or study";

5) in article 226:

part 1 shall be stated as following:

"period of detention should be no more than 72 hours from the moment of arrest of the person by militia (police) or any other law enforcement body. At presentation of necessary and sufficient substantiations from inspector or public prosecutor detention can be prolonged by the court decision for 48 hours";

The first sentence of part 3 shall be stated as following:

"In exceptional cases court can apply preventive punishment in the form of the custodial placement in relation to the arrested, suspected person";

6) part 2 of the article 227 shall be excluded;

7) in article 234:

In the title the word “detainees” should be replaced with “detainee”;

part 1 shall be stated as following:

“Person, arrested on suspicion of committing crime to be released, if:

1) suspicion of committing crime is not proved;

2) there is no need or the court denied in applying preventive punishment in the form of custodial placement in relation to detainee;

3) determined period of detention is expired and preventive punishment in the form of custodial placement is not applied in relation to detainee or the period of his detention is not prolonged according to the paragraph 3 of the part 10 of the article 243 of this Code”;

in part 4 after the word “or” add the words “determination of the court on prolongation of the period of his custody or on”;

8) part 2 of the article 239 shall be stated as following:

“Preventive punishment in the form of custodial placement can be applied towards:

1) Deputy (member) of the Legislative chamber and the member of the Senate of Oliy Majlis (Parliament) of the Republic of Uzbekistan with the approval of the relevant chamber of the Oliy Majlis of the Republic of Uzbekistan or its Kengash (Council);

2) Ombudsman on human rights of the Oliy Majlis of the Republic of Uzbekistan with the approval of the chambers of the Oliy Majlis of the Republic of Uzbekistan;

3) Deputy (member) of the Jokargi Kenes of the Republic of Karakalpakstan, deputy of regional, Tashkent city, district and municipal Kengash of people’s deputies with the approval of the Jokargi Kenes of the Republic of Karakalpakstan, corresponding Kengash of people’s deputies or their leadership;

4) Judge of the Constitutional Court of the Republic of Uzbekistan - with the approval of the Constitutional Court of the Republic of Uzbekistan, judges of other courts of the Republic of Uzbekistan - with the approval of the Plenum of the Supreme Court of the Republic of Uzbekistan or the Plenum of the Supreme Economic Court of the Republic of Uzbekistan accordingly;

5) Prosecutor and investigator of the Prosecutor’s Office with the approval of the General Public Prosecutor’s Office of the Republic of Uzbekistan”;

9) in the article 240:

to add into part 2 text as following:

«The preventive punishment in the form of custodial placement, which applied at a stage of pre-judicial phase can be cancelled or changed by prosecutor, and also inspector with the approval of public prosecutor at the absence of grounds for further detention of a person in custody with obligatory notification of the court, which made a decision on preventive punishment. Cancellation or change of preventive punishment in the form of custodial placement does not interfere with the repeated application to court with the petition for application of the given preventive punishment concerning the same person»;

The second part to be considered as the third part;

To add the fourth part with the following content:

“In the case of cancellation or change of preventive punishment in the form of taking into custody, arrested person must be released immediately”;

10) Articles 241 - 243 shall be stated as following:

Article 241. “The appeal and protest to the ruling on preventive punishment”

The decision on selection of preventive punishment can be appealed to the Public Prosecutor, who supervises the investigation and has a right to cancel or change it. Public Prosecutor should consider the complaint within three days from the moment of reception and notify the person who has made a complaint about his decision.

Court ruling on preventive punishment by taking into custody or on prolongation of term of custody at the stage of preliminary investigation can be appealed or protested within seventy two hours after the date of such ruling. The complaint or protest is to be lodged through the same court, which within twenty four hours should direct it together with materials to the court of appealing instance. The court of appealing instance should consider the mentioned materials with complaint or protest during no later than seventy two hours from the moment of receipt.

Lodging of complaint or protest does not stop execution of ruling on preventive punishment.

Article 242. “Taking into custody”

Taking into custody as preventive punishment is applied on cases of deliberate crimes that according to the Criminal Code brings to the punishment as imprisonment for more then three years, as well as on those crimes committed indiscreetly for which the Criminal Code stipulates punishment as imprisonment for more then five years.

In exceptional cases, taking into custody can be applied on cases of deliberate crimes for which punishment as imprisonment is stipulated for less then three years, as well as on those crimes committed indiscreetly for which the Criminal Code stipulates punishment as imprisonment for more then five years, but with one of the following circumstances:

- accused person, defendant has escaped from investigation and court;

- identity of the arrested suspect is not established;

- accused person, defendant violated the preventive punishment applied earlier;

- arrested suspect or accused person, defendant has no constant residence in the Republic of Uzbekistan;

- crime is committed during serving punishment as an arrest or imprisonment.

Article 243. “The order of taking into custody as a preventive punishment”

Preventive punishment in the form of taking into custody can be applied only to arrested suspect or person, who takes part in the case as an accused.

In the presence of circumstances stipulated by the law and selection of preventive punishment in the form of taking into custody during the preliminary investigation, prosecutor or inspector with the consent of prosecutor rules to submit a petition on application of preventive punishment in the form of taking into custody.

Ruling to submit a petition on application of preventive punishment in the form of taking into custody should state the reasons, in view of which there was a necessity for taking of detained suspected or accused person into custody, as well on impossibility to apply another preventive punishment. The necessary materials, proving the petition are to be enclosed to the ruling.

Prosecutor, after examination of validity of petition on application of preventive punishment in the form of taking into custody, and in case of the consent with it, directs the ruling on submission of petition and necessary materials to the court. If the petition is submitted against detained suspected or accused person, the ruling and mentioned materials should be presented to the court no later than twelve hours before expiry of term of detention.

Petition on application of preventive punishment in the form of taking into custody is to be considered individually by the judge of regional (city) court on criminal cases; district, territorial military court in a place of crime commitment or undertaking of preliminary investigation. In case of absence of the judge of mentioned courts or in presence of circumstances excluding his/her participation in consideration of material on application of preventive punishment in the form of taking into custody - another corresponding court by instruction of Chairman of the Supreme Court on criminal cases of Republic of Karakalpakstan, regional, Tashkent City court on criminal cases, Military Court of Republic Uzbekistan.

The petition for application of preventive punishment in the form of taking into custody is to be considered in closed court session, within twelve hours from the moment of receipt of materials, but no later than a deadline of detention.

The petition for application of a preventive measure in the form of taking into custody is to be considered with the participation of the Public Prosecutor, the defender, if latter participates in the case, suspected detainee or accused person. The arrested suspected or accused person has to be delivered to court session. The legal representative of the suspect or accused person, as well as the inspector has the right to participate in court session. If necessary, the inspector can be summoned.

Absence of the persons properly notified about a place, date and a time of court session is not an obstacle for consideration of the petition for application of a preventive measure in the form of taking into custody, except in cases when the accused person is absent. The petition for application of a preventive measure in the form of taking into custody of the accused and declared at large person is to be considered without his/her participation.

Consideration of the petition for application of a preventive measure in the form of taking into custody begins with the report of Public Prosecutor, which proves necessity of application of this measure. Then the suspect or accused person, the defender, other persons who have shown in court, have to be listened and submitted materials have to be investigated. After that, the judge leaves for a separate room to make a decision.

The judge, having studied the petition for preventive measures application to suspected or accused in the form of imprisonment, bears one of the following definitions:

1) on preventive measures application in the form of imprisonment;

2) on refusal of preventive measures application in the form of imprisonment;

3) on prolongation of detention term for the period no longer than forty eight hours so that the parties could submit additional proofs of validity or groundlessness of preventive measures application in the form of imprisonment.

Judge’s definition on preventive measures application in the form of imprisonment or refusal of such ruling inures from the moment of its announcement and a subject to an immediate execution. Judge’s definition goes to the public prosecutor for the execution, and to suspected or accused person and defender as a notification. Judge’s definition can be appealed, protested in the appeal order by the rules, fixed by a second part of clause 241 of the present Code.

The court of appeal instance, having studied the appeal complaint, the protest, has the right by its definition:

1) to leave definition of Judge without change, and the complaint or the protest - without satisfaction;

2) to cancel Judge’s definition and release suspected or accused from imprisonment or to apply to them preventive measures in the form of imprisonment.

In case of refusal of preventive measures application in the form of imprisonment, the repeated appeal to the court on the given question concerning the same suspected, accused is conceded at emerging of new circumstances of necessity for imprisonment";

11) the first, second, third parts of clause 245 shall be stated as following:

«Period of imprisonment during crimes investigation is no more than three months».

The opportunity for prolongation of three-month imprisonment period fixed by law norms is considered by court under the petition:

Till 5 months - of the public prosecutor of the Republic of Karakalpakstan or the public prosecutor of region, the city of Tashkent and public prosecutors equal to them;

Till 7 months - of the deputy of the General public prosecutor of the Republic of Uzbekistan;

Till 9 months - of the General public prosecutor of the Republic of Uzbekistan;

Till one year - under the petition of the General public prosecutor of the Republic of Uzbekistan while investigating cases of particular complexity concerning people accused in committing grave and especially grave crimes. The further prolongation of the imprisonment period is not conceded.

During the consideration of all above-mentioned appeals the court takes account of validity of submitted materials as well as observance of procedural norms and requirements»;

12) the text of Article 246 shall be stated as following:

«If the criminal case with expired date of detention of an accused and by circumstances of which the restraint such as detention can not be changed, is returned by the court for additional investigation, then the prolongation of term of detention shall be done by the court, which had returned the case for additional investigation to the prosecutor in the limit of one month starting from the date of returning the case to the prosecutor, who shall pass it to the investigator no later than in three days. The prolongation of the term is to be made in consideration with the time of detention prior to bringing the case to the court and in conformity with the order and limits defined in the first and second parts of Article 245 of the present Code»;

13) Article 247 shall be stated as following:

«Article 247. Procedure of prolongation of detention»

No less than six days prior to the expiry of detention the relevant prosecutor shall appeal to the court for prolongation of detention.

The appeal must include causes of prolonged investigation, versions and circumstances that must be examined and additionally requested term.

The appeal is to be examined solely by the judge of district (city) criminal court or territorial military court where the crime was committed or preliminary investigation was conducted. In absence of the judge of the above-mentioned courts or presence of circumstances which exclude his/her participation in examination of materials for prolongation of detention, than the appeal is to be examined by other relevant court by instructions from the Chairman of the Supreme Criminal Court of the Republic of Karakalpakistan, provincial, Tashkent City Criminal Court or Military Court of the Republic of Uzbekistan.

A petition to extend the term of detention shall be examined in a closed court session within seventy two hours from the date of receipt of the materials.

A petition to extend the term of detention shall be reviewed with the participation of the prosecutor, accused person and his defender, if the latter participates in the case. If necessary, the investigator may be summoned to the court session.

A petition to extend the term of detention may be reviewed by the court without participation of the accused if he/she is placed in a medical establishment to undergo an inpatient forensic psychiatric expert examination. This being the case, participation of the defense lawyer for the accused in the court session shall be mandatory.

Having reviewed the petition to extend the term of detention, the judge shall issue one of the following rulings:

1) to extend the term of detention;

2) to dismiss the petition to extend the term of detention.

The judge’s ruling to extend the term of detention or refuse the extension of the term of detention shall enter into force from the moment of its announcement and shall be subject to immediate execution. The ruling shall be sent to the prosecutor for execution, and to the accused and his/her defense lawyer for information. The judge’s ruling may be appealed within seventy two hours in the procedure specified by Article 241, Part 2 of this Code.

The court of appeal, having reviewed the appeal or protest, shall have the right, by its ruling,

1) to affirm the judge’s ruling or to dismiss the appeal or protest;

2) to recall the judge’s ruling and refuse the extension of the term of detention, or to extend the term of detention. If detention is extended in relation to the accused who was released from detention upon expiration of the term, the court must apply a measure of restraint in relation to him/her in the form of confinement”;

16) Article 342, part 2, sub-clause 2 shall be stated as following:

“there established the grounds for applying in relation to the suspected person a measure of restraint in the form of confinement or calling upon a certain person to participate in the case as the accused”;

17) In Article 355, part 2, sub-clause 3 the word “confinement” shall be replaced by the words “petitions seeking to apply a measure of restraint in the form of confinement”;

18) Article 365, part 4 shall be stated as following:

“If there are grounds as set out in Articles 242 and 243 of this Code, the court may by its ruling apply a measure of restraint in the form of confinement in relation to the accused on the wanted list in case he/she is detected”;

19) Article 382, part 3 shall be amended with Paragraph 5 as following:

“makes petition to the court or gives consent for a petition to apply a measure of restraint in the form of confinement, or makes petition to the court to extend the term of detention”;

Paragraphs 5-12 shall be considered Paragraphs 6-13 accordingly;

Paragraph 6 shall be stated as following:

“authorize agencies of inquiry to implement rulings on arrest, bringing to court and search for persons, and execution of a search and seizure, and rulings on applying a measure of restraint in the form of confinement and performing other investigative actions, as well as give instructions to take necessary measures for detecting crimes and persons committed crimes on cases being processed by a prosecutor or an investigator”;

Paragraph 9 shall be stated as following:

“extends terms of investigation in cases and procedures adjusted by the present Code”

20)Second part of the Article 558 shall be stated as following:

“Proceeding a case on the prosecution of solicitation on the application of extermination measures in a form of arrest concerning a juvenile, a prosecutor has an obligation to be personally acquainted with the case, to inspect the justification of the solicitation, to verify particularity of the case and to interrogate defendant on the circumstances related to the application of extermination measures”

Article 2. Introduce to the Law of the Republic of Uzbekistan dated from September 2, 1993 “On Courts” in a version of Law dated from December 14, 2000 Nr.162-II (Bulletin of the Oliy Majlis of the Republic of Uzbekistan, 2001 Nr.1-2 Article 10; 2002 Nr.1 Article 20, 2005 Nr.1 Article 18) the following amendments and additions:

1) In the Article 10:

to replace the word “to defendant” with the words “to defendant, to suspect” in the first part;

to add the following formulation of the third part:

“No one could be subjected to an arrest otherwise on the basis of the judgment of the court”;

to consider the third part as the fourth part

2) the second part of the Article 37 shall be stated as following:

“A district (city) court in criminal issues considers criminal cases and cases on administrative transgressions, respectively its competence, as well as solicitation on the application of extermination measures in a form of arrest or extension of the terms of arrest”

Article 3. Introduce to the Law of the Republic of Uzbekistan dated from December 9, 1992 “On Prosecutor’s Office” in a version of Law dated from August 29, 2001 Nr.257-XII (Bulletin of the Oliy Majlis of the Republic of Uzbekistan, 2001 Nr.9-10 Article 168; 2003 Nr.5 Article 67, 2005 Nr.1 Article 18) the following amendments and additions:

1) in the first part of the Article 28:

Paragraph 6 shall be stated as following:

“charges institutions responsible for the investigation to execute resolution of detention, compulsory process, investigation, search, confiscation and determination by the court of the application of extermination measures in a form of arrest, execution of the other investigation operations including operations under the implementation of a prosecutor or an inspector of the prosecutor’s office, instructs on application of necessary measures needed for the detection of a crime and persons who are committed a crime”;

Paragraph 8 shall be stated as following:

“extends terms of a preliminary investigation, appeals for a court for extension of the terms of arrest”;

Paragraph 12 shall be stated as following:

“authorizes, in the cases stipulated by the law, execution of the investigation operations, appeals for a court or agrees to the solicitation on the application of extermination measures in a form of arrest”

Article 4. This Law shall enter into force from January 1, 2008.

President of the Republic of Uzbekistan