The expansion of the institution of “habeas corpus” in Uzbekistan contributes to creating reliable guarantees for the protection of individual rights

In recent years, the reforms carried out in the judicial and legal system of our country are mainly aimed at achieving the goals of ensuring the inevitability of responsibility and the priority of human rights and freedoms, improving the procedure for conducting criminal cases, rather than increasing punishment, and in determining responsibility included such areas as strengthening the independence of the courts and achieving justice by ensuring equality of the parties, including the expansion of the habeas corpus institute.

In order to maintain order in society and ensure continuous development, it has always been important to improve the legal system in accordance with the changes of the times. The expansion of the habeas corpus institute is aimed at strengthening judicial supervision over pre-trial proceedings. In particular, the new version of the Constitution of our Republic clearly states that «No one may be arrested, detained, imprisoned, taken into custody, or otherwise restricted in freedom except on lawful grounds. Arrest, commitment, and confinement are allowed only by a court decision».

«Habeas corpus» covers the procedure for applying for a judicial review of the legality and validity of these actions in cases where human freedom of movement and other constitutional rights are restricted.

The provisions that constitutional rights and freedoms can be restricted only by a court decision or consent, if there are grounds, are aimed at preventing situations of abuse by officials of their official duties and preventing illegal restrictions on the rights and freedoms of the accused. In a narrow sense, «habeas corpus» refers to the procedure for verifying the validity and legality of the detention by a court of a person suspected of committing a crime and the application of a preventive measure in the form of detention by a court against this person.

The International Covenant on Civil and Political Rights also states that «Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release».

In practice, the use of detention in our country in 2022, 485 out of 24,118 petitions received by the courts from investigative authorities were rejected, 577 out of 22,254 petitions in 2023 and 256 out of 12,293 petitions in the first half of 2024. It should be noted that in each case of rejection by the courts of such a petition, the rights of the accused were not significantly limited.

The initiatives put forward by President Shavkat Mirziyoyev to expand the institution of «habeas corpus» in criminal procedure legislation consist in the full use of effective mechanisms to ensure the protection of human rights and freedoms, as well as strengthening measures to reliably ensure the constitutional rights to freedom and personal integrity of a person accused of committing a crime by the court.

On June 10, 2024, in order to implement such initiatives, increase the effectiveness of judicial activities, ensure in practice the principle of equality and competitiveness of the parties in pre-trial proceedings, achieve effective protection of the rights and freedoms of a person in operational search and investigative activities, Decree of the President of the Republic of Uzbekistan No. DP-89 «About measures for further strengthening of guarantees of reliable protection of the rights and personal freedoms in operational search and investigative activities».

According to the decree, it is envisaged to implement of procedure for consideration of question of issue of the sanction on proceeding decisions at stage of pre-judicial production on criminal cases by certain judges - investigative judges in district, city courts on criminal cases and introduce of position of the investigative judge in district, city courts on criminal cases. By expanding the institution of habeas corpus, it is envisaged to strengthen judicial supervision of the investigation, consolidate the rule of law in pre-trial proceedings and ensure the protection of individual rights and freedoms.

It is worth noting that the adoption of this decree creates the necessary organizational and legal conditions for strengthening the direct application of constitutional norms so that the mechanism for limiting constitutional human rights only on the basis of a court decision is fully enshrined in procedural legislation, as well as for its ideal functioning in practice.

The practice of using the habeas corpus institute in some foreign countries is of interest. In Austria, detention and extension of detention are carried out with the permission of the investigating judge. The investigating judge regularly checks the reasons for extending the period of detention or the grounds for arrest of a person, first after two weeks, then after one month, and then once every two months from the date of detention.

In England, interested persons have the right to demand that an arrested or detained person be brought to court to verify the grounds for his detention.

In the United States, a court authorizes the detention of a person, every two weeks the prosecutor submits to the court a report on persons detained for more than ten days and explains the reasons for the extension of the term.

In Italy, the detention of a person beyond the time limits established by law is considered by a special panel of judges in a supervisory manner.

In France, the extension of the term of detention is carried out on the basis of a specially reasoned decision of the investigating judge at the request of the prosecutor.

The position of investigative judge introduced into the judicial system and the new procedure for considering question of issue of the sanction on proceeding decisions at stage of pre-judicial production serve to expand the institution of habeas corpus, strengthen judicial supervision of pre-trial proceedings and the rule of laws also ensure a fair trial.

Giving to the investigative judge authority to consider the question of the application of sanctions on a request for the exhumation of a corpse; intercepting postal and telegraphic parcels, conducting search; tapping talks through telephones and other telecommunication devices, removal of information transferred on them; seizure of property; applying taking into custody as measure of restraint or house arrest; extending custody or house arrest period; suspension of passport validity; removal from office of the accused; placement of a person in a medical institution; extending the period of stay of the accused in a medical institution; preliminary confirmation of the testimony of witnesses and victims, as well as the consideration of administrative cases, frees the judge from tasks unrelated to the consideration of criminal cases on the merits, and gives more opportunity to issue a lawful, reasonable and fair verdict in the case.

To achieve the following main activities of the investigative judge: 1) fair and objective performance of duties; 2) ensuring the rule of law, social justice, civil peace and harmony; 3) effective protection of the rights and legitimate interests of citizens and legal entities in court – it is necessary to reflect the relevant mechanisms in legislation.

In our opinion, when determining the procedure for consideration of the relevant petition and cases by the investigative judge, it is necessary to consider the following:

1. Creating the possibility of electronic document management when submitting requests and presenting the results of its consideration.

2. Creating the possibility of taking action in urgent cases, as well as to ensure the legality and validity of decisions and actions in such cases.

3. Achieving effective and rapid implementation of the established procedure.

4. Establishing mechanism for consideration by the investigative judge of complaints against decisions and actions of the inquirer, investigator, affecting the rights and freedoms of the individual.

5. Specifying the specific grounds for granting and rejecting requests for taking into custody or other measures related to the restriction of constitutional rights and freedoms.

At the same time, it is advisable to ensure that the amendments and additions to the Criminal Procedure Code are made in accordance with other procedural norms, as well as to ensure that the application of new norms is convenient and effective for all participants in the process.

To summarize the above, the expansion of the institution of “habeas corpus” in our national legislation serves to strengthen judicial control in the process of conducting criminal cases, as well as to create reliable guarantees for the protection of individual rights.

R.A. Khatamov

Head of the Academy of the Ministry of Internal Affairs of the Republic of Uzbekistan,

Doctor of Philosophy in Law (PhD), Associate Professor