CC BY
0INCONSISTENCIES IN LEGISLATION AND THEIR
SOLUTIONS
Fayzullaev Sh.F.
Independent researcher at the Academy of the Ministry of Internal Affairs https://doi.org/10.5281/zenodo.13122608
Abstract. In this article, the minimum requirements and inconveniences observed in practice related to conducting investigative actions in the video conference mode in the Criminal Procedure Code, the reasons why this regime is not popular with inquiry and investigative bodies, the achievements of legislation of advanced foreign countries in this regard, the comments of foreign scientists on improving working conditions are comprehensively analyzed, suggestions are given.
Keywords: video conferencing, remote investigation actions, video communication, minimum requirements, image quality, sound quality, VPN protected communication channel.
It is known that the principle "For the sake of human value" has been established as a priority direction of the new development strategy of Uzbekistan, designed to glorify the value of a person, ensure the rights and freedoms of the individual, and his legitimate interests. This strategy serves to consistently continue the policy of improving criminal, criminal procedural and criminal executive legislation, the widespread introduction of the principle of humanism into the system of criminal penalties and their execution, ensuring the undisputed rule of law and constitutional legitimacy, and glorifying human dignity.
Throughout its long history, laws have been changed and supplemented. Each law has its own specific assessment. Among them is the procedure for conducting investigative actions via videoconference provided by law. In this article, we will discuss in detail some of the inaccuracies and inconsistencies associated with remote investigation, as well as the experience of developed foreign countries in this regard.
The part 3 of Article 91 of the Criminal Code of the Republic of Uzbekistan contains strict minimum technical requirements for an authorized person to carry out investigative actions in video conference mode, in terms of image quality - size 1920x1080, 50 frames per second, in terms of sound quality - frequency range 100-12,000 Hz, information for security - VPN must use a secure communication channel. Otherwise, evidence obtained as a result of investigative actions conducted via videoconference that does not meet these requirements will be considered inadmissible evidence. In our opinion, the presence of these requirements is the reason that the process of conducting investigative actions via videoconference is rarely used in the activities of bodies that transfer a case to court.
Although the SEC of the Republic of Uzbekistan establishes minimum requirements for technical means used when conducting investigative actions via videoconference, in criminal cases studied as part of investigative work, audio recordings and video images of the voices of the accused are recorded, the victims' devices on personal mobile phones have also been accepted as evidence in the case, and cases of release have been observed based on this evidence. Thus, accused F.S. gained the trust of 16 people, stated that he would slaughter and sell their goods and give them money in a short time, fraudulently appropriated other people's property, and video recordings and audio recordings of telephone conversations were taken. The investigative body,
when confiscating things from the victims, were formalized in a procedural manner, and 168 of the Criminal Code of the Russian Federation - charges were brought under paragraph "b" of part 3 of the article. The court considered these audio and video images as material evidence and sentenced him to imprisonment. However, it cannot be said that these recordings meet the sound quality requirements - the frequency range is 100 - 12,000 Hz.
In the article 2241 of the Criminal Procedure Code of the Republic of Belarus establishes the procedure for conducting interrogations and investigative actions using a video conferencing system (web conference). Part 4 of this article contains requirements for technical means used to carry out investigative actions in videoconference mode, in which the use of a video conferencing system (web conference) during investigative actions ensures that participants in the investigative action exercise their rights and fulfill the obligations provided for by this Code, while it is correct to indicate that picture and sound quality must be ensured. The criminal procedure legislation of this country does not establish minimum requirements.
The Criminal Procedure Code of the Republic of Georgia also establishes general rules for conducting remote interrogation (Article 243. Study of the interrogation protocol and testimony given during the investigation, remote interrogation of a witness), as well as investigative actions and judicial proceedings carried out using technical means. There are no specific requirements or restrictions for technical means used in judicial actions.
The Criminal Procedure Code of the Republic of Kazakhstan contains the concept of video communication, and this concept is used instead of the concept of video conferencing in our legislation. In Kazakhstan there are no specific requirements for video communication devices, but Article 126 establishes general rules for scientific and technical means used in the process of evidence. In particular, during testing, scientific and technical means must meet the following requirements:
1) is directly provided for by law or does not contradict its norms and principles;
2) be scientifically based;
3) the need to ensure the efficiency of criminal proceedings;
4) general rules applicable to investigative activities and judicial proceedings are defined, the use of which must be safe, and minimum requirements for a video communication device used in investigative and judicial activities are not established.
In the Criminal Procedure Code of the Kyrgyz Republic, it is possible to conduct interrogations and other investigative actions remotely via video communication, and in the criminal procedural legislation of this state, as in Kazakhstan, there are no special requirements for video communication. The general rules used in investigative and judicial proceedings specify that it must not be carried out or contrary to its rules and principles, must be scientifically based, must ensure the effectiveness of the criminal process and be safe to use, and must be safe to use. It can be seen that there are no minimum requirements for a video communication device used in investigative and judicial actions.
The criminal procedure law of the Republic of Latvia allows for the implementation of procedural actions using technical means, and the criminal procedure law of this country does not establish special requirements for technical means used in performing procedural actions if this corresponds to the interests of the criminal process. It is possible to conduct a procedural action using technical means (teleconference, video conference) in order the person directing the process when performing procedural actions using technical means, and persons participating in
procedural actions in different rooms or buildings can hear each other during the teleconference . It also specifies general rules for what they must be able to hear and see during a video conference and does not provide minimum requirements for a video conference device used in investigations and legal actions.
The Criminal Procedure Code of the Russian Federation also contains several articles on the procedure for using videoconferencing, and this code does not meet the specific minimum requirements for this technical device.
In the Republic of Tajikistan, the procedure for using remote investigative actions at the stage of transferring a case to court has been strengthened. In the article 23 of the Criminal Procedure Code of Tajikistan, if the witness or victim is located outside the republic, you can see that the interrogation can be carried out remotely through telecommunication systems and e-mail, with the drawing up of a certified protocol, electronic signature, and the investigator has the right to question witnesses remotely.
The similar provisions can be found in the legislation of neighboring Turkmenistan. According to Article 2521 of the Criminal Procedure Code of the Republic of Turkmenistan (Interrogation, face-to-face meeting and presentation for identification using a digital video communication system), the investigative actions of the body conducting the preliminary investigation, during interrogation, face-to-face meeting of a person and presentation for identification using a digital video communication system are carried out by the investigator, while it is indicated that it can be carried out in accordance with the requirements specified in this Code and in accordance with the characteristics provided for in this article. Even in the process of studying this code and established procedures, there is no situation where the minimum requirements for the digital video communication mode are included.
The research shows that the above minimum requirements are not included in the Estonian Criminal Procedure Code. Article 69 of this Code reflects the procedure for conducting remote interrogation and investigative actions, in which the person conducting the case can carry out remote interrogation if technically possible, in case of difficulties in arriving, or if this causes excessive costs or to protect interests a person includes rules according to which he should be transferred if necessary. It can be the same procedural norms observed in the Criminal Procedure Law of Ukraine.
The solution to the analyzed issues that arise in investigative practice will be the inclusion of the experience of criminal procedural legislation of foreign countries discussed above into the legislation of our country.
As a result of research, the presence of minimum requirements for conducting investigative actions via videoconference, existing in our legislation, is one of the main factors that this mode is not popularized by the authorities carrying out investigative actions. Since there are no such minimum requirements in the criminal procedural legislation of Azerbaijan, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Latvia, the Russian Federation, Tajikistan, Turkmenistan, Estonia, Ukraine and other countries, the minimum specified in Part 3 of Article 911 of the Criminal Code is absent. The Criminal Procedure Code of the Republic of Uzbekistan is proposed to change the requirements to "Technical means and equipment used in conducting investigative actions via video conference must be sufficient to achieve the goal of the investigative action." As a result of the abolition of the minimum requirements established by Part 3 of Article 911 of the Criminal Code, this mode of investigation will be possible to carry out by the bodies of inquiry and
preliminary investigation through cameras installed on computers. As a result, the remote
investigation mechanism is simplified and the possibility of collecting inappropriate evidence is
reduced.
REFERENCES
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