Turkmenistan Criminal Procedure PDF

Inadmissibility of the judge's 1 -- The judge, who has taken part in the examination of a criminal case as prosecutor, inquirer or investigator, cannot take part in the examination of the same criminal case. 2 -- The judge, who has taken part in the consideration of the criminal case in the first in...

Inadmissibility of the judge's 1 -- The judge, who has taken part in the examination of a criminal case as prosecutor, inquirer or investigator, cannot take part in the examination of the same criminal case. 2 -- The judge, who has taken part in the consideration of the criminal case in the first instance court, cannot take part in the examination of the given criminal case in the court of the second instance or by way of supervision except session of Supreme Court Of Turkmenistan , or to take part in the new consideration of the criminal case in the court of the first instance, if the sentence or the ruling or the decision on the termination of the criminal case, passed with his participation, has been cancelled. 3 -- The judge, who has taken part in the examination of the criminal case in the court of the second instance, cannot participate in the consideration of this criminal case in the court of the first instance or by way of supervision, or in the new consideration of the same case in the court of the second instance after the cancellation of the sentence, of the ruling or of the decision, passed with his participation. 4 -- The judge, who has taken part in the examination of a criminal case by way of supervision, cannot take part in the examination of the same criminal case in the court of the first or of the second instance. - The petition supporting the alibi of suspect or accused shall be satisfied. - On the satisfaction of the petition shall be brought to the knowledge of the person, who has filed this petition. - On the complete or partial refusal to satisfy it, the related organ shall pass a resolution(a ruling), which shall be brought to the knowledge of the person, who has filed this petition. - There is also some important circumstances for case stipulated in the art. 23, 126, 242.  Filing Appeals Against the Actions and Decisions of the Institutions and of the Officials, Conducting the Criminal Court Proceedings - Actions of the body of inquiry and the investigator may be appealed directly to the prosecutor. - Appeals can be filed oral or in written form. If appeal filed orally, it should be included to the protocol and a person who filed as well as official who accept appeal shall put the signature. - The body inquiry or investigator shall have submit the explanation to the prosecutor not later than one day. - The filed appeal on proceedings does terminate the execution of the action. But in some cases it could be terminated if investigator or prosecutor considers - The prosecutor shall consider and solve the appealed complaint in the course of three days from the day of its receipt and acknowledge the results who filed it. - If the filed appeal refused, the prosecutor shall have provide the proofs about it is groundless. - All appeal against prosecutors’ actions and decisions shall be filed to high placed prosecutor. - If case transferred to the court all related appeals(complaints) shall be filed to the court. - There is restriction on solving the filed appeals by the person, whose actions appealed in related case.  Protocols - Protocol have several meanings with it related sphere. For instance: the protocol of state government, or it can be used as treaty document and etc. Here we have to understand the real meaning of the protocol in criminal proceeding. - Protocol it is an important official document which indicates the all proceedings (time, place, person and etc.) done with beginning of taken criminal action and by the end of court examination. - Related art. 116-123 - There is compulsory norms to lead the protocols of all procedural actions.  SUBSTANTIVE MATERIALS - The rules for inspection and storage stipulated in art.261. *** Here the investigator gives decision about conditions of keeping and to attach to case - The issue about the future of substantive materials shall be given by verdict, determination, decision or decision on termination of the case. 1- the tools of crime of the accused need to be obliterated(destroyed) or confiscated considering the value of the material. 2- Money and other valuable things acquired in act of crime, are transmitting to the states’ income. 3- The things prohibited to use(transformation) are transmitting to respective organs or destroying. 4- Invaluable or unusable things shall be obliterated. 5- Other things belong to be returned to its owner. 6- Documents refer as substantive material are keeping within limit of the case storage. *** In case of justification of needs of the documents it could be given back to owner, or given for temporary time or given a copy of it if it doesn’t affects to the case investigation.  PROTOCOLS - All protocols composed and formalized in accordance with law have power of proof. ***What can be settled in protocol? 1- Factual data 2- Examinations 3- Other investigative and court actions - The informations in document could be settled in written form or other forms. ***Which materials are belong to the document? 1- Explanations, inventory acts and references 2- Computer data, photos, audio and video records.  PROVING - The proving shall consist of the collection, attaching, verification and application of proof for the purpose of establishing the circumstances in terms of legality, justice.  Collection of Proof - Proof shall be collected in the course of the criminal court proceedings by the inquirer, the investigator, the prosecutor and the court through the performance of the investigative and of the other procedural actions. -Investigative actions: 1- Interrogate 2- To get expert conclusion 3- Checkup 4- Demand to receive the documents from people and institutions 5- Ask revision -- The counsel for the defence shall have the right to collect proof by way of: 1- obtaining the objects, documents and other information; 2- questioning the persons with their consent; 3- demanding the reference notes, characteristics and other documents from the state power bodies, from the local self- government bodies and from the public associations and organizations, which are obliged to supply the requested documents or the copies.  - The suspect or the accused, as well as the victim, the civil claimant, the civil defendant and their representatives shall have the right to collect and submit the written or verbally given as a documents and the objects for enclosing them to the criminal case as proof.  Measures of Procedural Coercion Detention - Detention is one of the measure of procedural coercion which applies to the suspect or accused to convey to related organs - It is short-term detention at definite time and place. *** Why detention applied on suspect or accused? 1- To prevent disappearance of suspect or accused 2- To prevent from status fugitive from justice 3- To prevent the conceal or destroy of the evidence 4- To prevent the obstacles 5- Execution of verdict --- According to the Turkmenistan Criminal Procedural law the detention shall be applied in following cases: 1- If suspect of crime or accused committed a crime which foresaw a capital punishment deprivation of liberty. 2- If accused disobey of measures of coercion. *** Grounds for detention: 1- if this person is caught red-handed when committing the crime or immediately after committing it. 2- if the victims or the witnesses point to the given person as the perpetrator of the crime. 3- on this person or in his clothes, near him, in his dwelling or in his car found undoubted traces of the crime. 4- if there exist other data providing grounds for suspecting the person of the perpetration of the crime; if he has made an attempt to flee; or if he does not have a permanent place of residence or if his personality has not been identified. *** The matter of detention of the underage person solve in accordance with a law and gravity of the crime. -- After detention the suspect the body of inquiry obliged to compose protocol pointed out the date, time and the place of and the grounds and the motives for the detention, the date and time of compiling it and other circumstances of his detention. The protocol shall be signed by the person who has compiled it and by the suspect. If detained refuses to sign, refusal shall be noted in protocol  Notification on Detention - 3 group of people could be detained. 1- Citizen 2- Minors(Underage person) 3- Foreign citizen - The body of inquiry shall be obliged to notify to relatives or other close relatives of suspect, not later than in 24 hours from the moment of detaining the suspect,. - The body of inquiry shall be obliged to notify to parents or who in charge of parent ship, immediately from the moment of detention of the minor - If the suspect is a citizen of another state, the body of inquiry notify the Ministry of Foreign Affairs for informing regarding embassy. *** Summon and interrogate the suspect - The suspect shall be summoned and interrogated in conformity with the demands of the article 246, 250, 252, 255 and 257 of the present code. - Before the suspect interrogated the rights stipulated at the art.79 shall be explained. - General rule is to interrogate immediately after detention or arrest. Exception no later than 24 hours.  The duration of detention - After detention of suspect the body inquiry obliged inform the prosecutor no later than 24 hours. - After been informed of detention, no later 48 hours the prosecutor obliged to give sanction about suspects’ arrest or to leave him free. *** There is strict prohibition that the total duration on detention shall not be more that 72 hours. *There is international standard to treat with suspects regarding to the detention.  MEASURES OF RESTRICTION - If there are sufficient grounds to believe that the suspect or accused will flee from the inquiry, from the preliminary investigation or from the court; hinder the investigation or may continue the criminal activity, the inquirer, the investigator, the prosecutor or judge taking into account the gravity and danger of the crime, shall have the right to select towards the accused one of the measures of restriction envisaged by the present Code *** There are 5 types of measures of restriction and 2 additional measures selected to minors and military servicemen. 1) recognizance not to leave; 2) personal guarantee; 3) the guarantee of organization; 4) bail; 5) taking into custody (arrest); ** Supervision of minor suspect or accused ** Surveillance by the command of a military units - The Circumstances taken into account when a measure of restraint is selected When the issue is being considered as to the need for selecting a measure of restraint in respect of a person suspected or accused of having committed a crime and determining the type of measure, when the grounds envisaged by art. 146 of the present Code exist, the degree of gravity of the crime, information on the suspect's or accused's personality, his age, condition of health, marital status, occupation and other circumstances shall be taken into account. - Selecting a Measure of Restriction Towards the Suspect In the exceptional cases, if there exist the grounds mentioned in article 146 of the present code and taking into account the circumstances pointed out in article 148 of the present code, a measure of restriction may be taken towards the suspect before the accusation. The accusation shall be brought against the suspect no later than ten days as from the moment of application of the measure of restriction and if the suspect was first detained and then taken into custody - within the same term as from the moment of detention. If the charge of accusation is not brought within this term, the measure of restriction shall be immediately cancelled.  Other Measures of the Procedural Coercion Grounds for application of other measures of procedural coercion - For the purposes of ensuring order for the criminal court proceedings and of proper execution of the sentence, the inquirer, the investigator or the court shall have the right to apply jointly the measures of restriction stipulated at 18 th subsection of present Code or separately towards the suspect or the accused the following measures of the procedural coercion: 1- an obligation to appear 2- a forcible bringing to court 3- a temporary dismissal from the post 4- putting the property under arrest - In the cases, stipulated by the present Code, the inquirer, the investigator or the court shall have the right to apply towards the victim, the witness or to other participants the following measures of the procedural coercion: 1- an obligation to appear 2- a forcible bringing the court 3- fine (monetary penalty) 1- an obligation to appear If there are grounds for doubt that suspect or accused to whom the detention or other measures of restriction not applied and also victim or witness will evade to appear or if they would not appear without any excuse, by side of investigation or court may be taken an obligation to appear. 2- a forcible bringing to court - The suspect and the accused, as well as the victim and the witness may be brought forcibly, if they fail to appear at the summons without serious reasons. - There are some excuses to be taken under attention like illness, natural disaster or etc. In appropriate time they obliged to inform the reasons. - The resolution of the inquirer, the investigator or of the judge, or the ruling of the court on the forcible bringing shall be announced before its execution to the person who is going to be subjected to a forcible bringing, which shall be certified with his signature on the resolution or on the ruling. - A forcible bringing cannot be carried out at the night time (22:00- 06:00). - Not subject to a forcible bringing shall be the minor who have not reached fourteen years of age, pregnant women, and sick persons who cannot leave the place which shall be certified by a doctor and also to minors to whose parents not informed. 3- fine (monetary penalty) If the participants in the criminal court proceedings fail to fulfil the procedural liabilities, stipulated by the present Code and also in the case of their disorderly conduct at the court session, the fine shall be imposed in accordance to administrative procedure and present Code. *** There is procedure to impose the fine in the art.205. *** The Code of Administrative Infringements of Tm - Art.420  Civil Claims in Criminal Procedure *** To run the action on civil claims there should be a civil claimant as natural or legal person. *** This is important to know that: - Victim, who is suffered from the crime, to compensate the damages has the right for the civil claims. - Institutions, organizations are obliged to run the civil claims to compensate the damages and lost. - When making a civil claim, the civil claimant shall be exempted from paying state duty - The jurisdiction of the civil claim stemming from the criminal case shall be determined by the jurisdiction of the criminal case, in which it is filed. - For the questions regarding to the civil claim coming from the criminal procedure shall be solved with the rules of civil procedure which are not contradict to the rules of criminal procedure. *** Renewal the civil claim at criminal procedure prohibited if civil claim refused at civil procedure. If during the criminal procedure the civil claim of the civil claimant refused, the civil claimant lose his right to claim in civil procedure. *** Civil claim may be presented after the institution of criminal proceedings, during the investigation. In court, before trying the criminal case. - The opposite claims to the civil claims and the claims toward convicted in cases where he/she declared incapable (insane or suffering from mental illness), are restricted in criminal procedure. *** This means that the rule of replica does not work in c.p. - If person did not claim about civil claims or if the claims passed without trying, he has right to claim in civil procedure.  PROCEDURE Inquirer, investigator, prosecutor, judge and court Declare the civil claimant Refuse the civil claimant Art.191 Art.192 1. There should be 1. In absence of the grounds for civil decision on civil claims. claims stipulated in the art. 188, the civil claims shall be refused. 2. There should be decision on refusal. 3. Explain about right to appeal. - In case of acquittal or termination of the case for imposing the compulsory treatment: 1- In absence of the event of crime, the civil claim refuses. 2- In absence of the element of crime, the civil claim passes without trying. *** For conditions stipulated in part 1st 3-10 of art. 31, the civil claim passes without trying. - The civil claims tries jointly with criminal case. In case of impossibility of the determination the amount of lost, the civil claim might be solved in civil procedure. Art 194 Art. 198 - With verdict the judge completely or partially satisfies or refuses the civil claims of the claimant. - For decently calculation of the lost, the court may transfer the civil claims for solving in civil procedure with declaration on being civil claimant.  Institution of a Criminal Case - Art.206 reads the general obligation on bodies of inquiry, investigator and prosecutor to institute the criminal case. - If there is enough grounds to institute criminal case, the judge has to institute the criminal case and send it for preliminary investigation.  Reasons and Grounds for the Institution of a Criminal Case - The following shall serve as the reasons for the institution of a criminal case: 1) an application(report) or information of the citizens on a crime 2) an application of the authorized people 3) information from mass media 4) giving oneself up - The criminal case shall be institute only in case of sufficient evidences and if investigator, prosecutor or judge directly disclose the trace of crime. Art.208 - A report on a crime may be made either verbal or in writing form. - A written report on a crime shall be signed by the applicant. - A verbal report on a crime shall be entered into the protocol, the protocol shall contain the data on the applicant, as well as on the documents, identifying the person of the applicant. - The applicant who is over 16 year old, shall be warned about the criminal liability for a deliberately false denunciation. - An anonymous report on the crime cannot serve as a reason for the institution of a criminal case.  Institution of a Criminal Case on Complains(action) of the Victim- Art.213 - The crimes stipulated in the Criminal Code of Turkmenistan: Art.111, 115, 132/1, shall be instituted the criminal case if only victim complains about the crime. - The criminal case shall be terminated, in case of reconciliation of the parties, before the court goes to the advisory meeting for verdict. - The crimes stipulated in the Criminal Code of Turkmenistan: Art. 134/1, 137, 153, shall be instituted the criminal case if only victim complains about the crime. But reconciliation of the parties does not work on termination of the criminal case - The prosecutor has right to institute the criminal case for rape in absence of complain of the victim if she can not protect her rights because of the mental or physical disability. - In exceptional situations, the prosecutor has right to institute the criminal case for the crimes Art.111, 115, 132/1 in absence of complain of the victim if criminal case has necessity of the public interest and also for the crime 134/1 when victim can not protect his/her right because of being helpless or being dependent to offender. - Reconciliation of the parties does not work for the termination of the criminal case. What kind of solutions are given after receiving the complain or information about the crime? 1- To institute criminal case 2- Refusal on institution of the criminal case 3- Send the statement to the jurisdiction of regarding investigation 4- Send to solve in accordance to the Administrative Law of TM - It is important inform the complainant about solutions on given statement. - In the last part of the art. 215 mentioned about the right of the prosecutor the institute criminal case, in needs of public and state interest or infringement of human rights.  1- The procedure to institute the criminal case. - In sufficient grounds on institution of the criminal case the body of inquiry, investigator with permission of the prosecutor, as well as prosecutor himself or court institute the criminal case. - The body of inquiry, investigator and prosecutor gives – the resolution (decision) - The court gives – determination - In the resolution and determination shall be shown the grounds and evidences, the article of the criminal code, also the name of the institute where the case sent for inquiry and preliminary investigation. - If it is possible to assign the person suffered from the committed crime then he announced as a victim. If with statement given civil claim then by decision(determination) he accepts as a civil claimant. - By institution of the criminal case all measures shall be taken for prevention of repeating crimes or continuing of the commission of the crimes, protection of the evidences and traces. *** The art.217 reads about institution of criminal case on the materials of the proceeding of the criminal case.  Preliminary investigation *** Procedural rules for preliminary investigation 1- Investigator shall determine the personality of participants and explain them their rights and duties and the procedure of the investigation. 2- Prohibition to hold preliminary investigation at night time. Exception: Circumstances of exigent. 3- Prohibition to use violence and inhumane acts. 4- The investigator has right participate body of inquiry. 5- Importance to compose the protocol. - Investigator obligated to take all necessary measures to insure maintained or probable civil claims or confiscation of the assets. *** The duration of the preliminary investigation. - It is a time period which starts with decision of the institution of criminal case and ends with accusation or compulsory medical treatment decision which sends for determination to prosecutor. - Suspended time duration doesn’t counts for preliminary investigation. - The preliminary investigation can be prolonged from 2 month to 6 month and 1 year and more than 1 year. - There is procedure on informing the decision on prolonging the investigation: 1- 3 days before when informs the over placed prosecutor. 2- 7 days before when informs the Prosecutor General and deputies. - If the issue about to prolong the preliminary investigation and to prolong the terms of arrest then one decision should be given. Note: If the accusation decision of not arrested accused sends back for additional preliminary investigation by the court then the prosecutor who is monitoring the case, has right to hold the preliminary investigation during 1 month. - Same rule works for suspended and terminated cases.  The Procedure for the Involvement as the Accused - If there exist sufficient proof, comprising a ground for bringing a charge against the person for the perpetration of a crime, the investigator shall pass a resolution on taking to criminal liability. - The investigator assigns the date for bringing the charge and explains the right to be presented by attorney. - The investigator takes all necessary measures for compulsory presence of the attorney. In the resolution shall be pointed out: - the date and place of its compiling, - who has compiled the resolution, - the surname, name of the defendant, the day, month and year, and the place of his birth, - a description of the crime with an indication of the time and place of its perpetration, as well as other circumstances subject to proving, - the item, the part and the article of the criminal code, stipulating liability for the given crime, - the investigator shall send the copy of resolution to the prosecutor no later than 24 hours. - Art 246 reads the issue about compulsory appearance of the accused. - The accused who didn’t taken under the custody summons for interrogation. - There is procedure how the accused summons. - The excuses for disappearance. - The forcibly measures.  Examination, Exhumation and Inspection. - Examination of the place of accident, locality, place of dwelling, of the objects and the documents, and corpse shall be aimed at revealing the traces of the crime and at elucidating other evidences for the criminal case. - In cases precluding a delay, an examination may be performed before the institution of the criminal case. But the criminal case shall instituted immediately after the examination. - The aim of examination is to expose the witnesses, to caught and detain the suspects at place of crime, to evacuate the victims and with assistance of the body of inquiry the protection the arena of the crime. - An examination shall be carried out with the participation of attesting witnesses. - All the objects, exposed and seized during an examination, shall be presented to the attesting witnesses and to the other participants in the examination ***Examination of substantive materials. - All materials obtained during the examination the place of crimes, the dwellings and search and also materials obtained during the inquisition and investigative acts and the materials obtained through request of the investigator from the organizations and citizens, are the subjects of examination. - After examination of the materials it would be used as substantive materials. - The resolution of the investigator needs to use the substantive materials - Other procedures solves in accordance with an art.130 *** External Examination of a Corpse - The investigator shall carry out an external examination of a corpse with the participation court-medical expert. - Exception if participation of the court-medical expert impossible the investigation carry out with doctor. *** The Exhumation - The grounds for exhumation: 1- for examination of the corpse 2- for identification 3- the necessity of the expert report. - There exhumation carry out with justified resolution of the investigator. - The exhumation and the examination of the corpse shall be performed with the participation of the attesting witnesses and court-medical expert. ***Inspection - For exposure of the specific features and traces of a crime on the person's body as well as the bodily injuries if no court(forensic)-medical expertise is required for this, an inspection of the suspect, of the accused, of the witness and of the victim may be effected. - The investigator shall pass a resolution on carrying out an inspection, which is obligatory for the inspected person. --- After receiving the case with the bill of indictment the prosecutor takes the following decisions: *No longer than 5 days. 1- Confirm the indictment and transfer to the court. 2- Send back for additional investigation to the inquiry or investigator with his own instructions. 3- Gives decision on termination of case if exist the grounds for that. - Prosecutor has right to change the number of invited person for court hearings and to change or select measures of restrictions. - In case of disparity the bill of indictment with the demands of the art. 322 of present code, the prosecutor has right to send back with own written indications to renew the indictment. *** Change of accusation on the process of certification of the indictment. - The prosecutor has right to exclude the separate parts of the accusation and use the leaner law by his reasoned decision. - In case of need new bill of indictment shall be composed. - If accusation shall be reshuffled with grave accusation or exist the factual substantive differences, the prosecutor sent to inquiry or investigator for new accusation. - If the renewal of accusation doesn’t lead to change with grave one, the prosecutor has right to compose new the bill of indictment without sending for additional investigation. In this stage the previous indictment must be withdraw from the case. *** Transfer of the case to the court. - Prosecutor certify the bill of indictment or compose new one. - The prosecutor hand over the copy of indictment to the accused on receipt and send to the courts’ jurisdiction. - The prosecutor has right to receive back the case before court’s process. - Prosecutor obliged to inform all participant of the ongoing case.  THE COURT OF THE FIRST INSTANCE - The court or judge gives resolution to take for court proceedings and hearing. - The judge gives decision on taking the case to the court hearing before the issue of guilt proving. *** In case of importance for the following issues the court held the managing session: 1- In case of disagreement of judge with indictment of the juvenile’s case. 2- In case of reconciliation of the victim with accused. 3- In case of need to change the measures of restriction of the accused. 4- In case of suspension of the case. 5- In case of question of jurisdiction. 5- In case of need to join the cases. *** Besides the managing session appointed, the court shall solve all question stipulated in art. 337 and 338 of the present Code. *** Art. 337 : Questions to be clarified on the criminal case which has arrived at the court On the criminal case which received by court, on the managing session the judge shall find out the following with respect to every one of the accused: 1- whether the criminal case is within the jurisdiction of the given court; 2- whether the grounds for the suspension or for the termination of the criminal case are exist; 3- whether the sufficient evidences collected for court hearing; 4- the question of the accused on appearance to the court solved on the ground of statement on constant residence. 5 - whether investigative actions comply with criminal procedure and so on…  PETITIONS - The participant to the criminal proceeding shall have the right to file a petition for the performance of the procedural actions or for passing the procedural decisions, aimed at establishing the circumstances of importance for the criminal case, for guaranteeing the rights and lawful interests of the person who has lodged the petition. - Inquirer, investigator and prosecutor shall have examined and immediately resolved the petition of participant (victim, accused, suspect, etc.) not later than three days from the day of being filed. - The petition can be satisfied if petition provides support to the rights and the legal interest of the participant and helps to examine the case comprehensively, fully and correctly. Otherwise petition could be refused.