Criminal Procedural Law PDF

CRIMINAL PROCEDURAL LAW General info: - Between 1961-2009 was applied Criminal procedural code of TSSR - After July 1st 2009 new CPC came into the force - And some other new adds - In the territory of Turkmenistan there is only one procedural code which is based on Constitut...

CRIMINAL PROCEDURAL LAW General info: - Between 1961-2009 was applied Criminal procedural code of TSSR - After July 1st 2009 new CPC came into the force - And some other new adds - In the territory of Turkmenistan there is only one procedural code which is based on Constitution of Turkmenistan and International agreements. Ex: Turkmenistan ratified the International pact on civil and political rights. -In case contradiction of two norms like TCPC and International norms, the international norms shall be applied. - All proceedings on criminal cases on the territory of TM shall be applied regardless of the place of committing the crime - The is no retroactive force to the provisions which abolishing or limiting the rights of the participants. - The permission to apply the foreign criminal procedural code in the territory of Turkmenistan possible only if permission stipulated in International agreement certified by Turkmenistan - CPC of TM also can be applied to the foreign citizens and stateless persons. The provision to apply this Code to the persons under diplomatic immunity stipulated in the part 50 Article 1: Legislation defining the procedure of criminal litigation  1. The procedure for criminal proceedings in Turkmenistan is determined by the Code of Criminal Procedure, which is based on the Constitution. Separate laws regulating criminal proceedings are subject to incorporation into this Code.  2. The procedure for criminal proceedings established in the present Code is uniform and binding in all criminal cases and for all participants in criminal proceedings.  3. International treaties and general principles and rules of international law recognized by Turkmenistan governing the procedure of criminal proceedings are an integral part of the law of criminal procedure. Article 2: International agreements  If an international agreement of Turkmenistan establishes provisions other than those provided for in the present Code, the provisions of the international agreement shall apply. Article 3: Effect of the law of criminal procedure in time and space  1. The law of criminal procedure in force at the time of inquiry, preliminary investigation or court consideration of a case shall be applied in criminal proceedings.  2. The law of criminal procedure which abolishes or limits the rights belonging to the participants of the proceedings, restricts their use by additional conditions, shall not have retroactive force.  3. Criminal proceedings in Turkmenistan, regardless of the place where the crime was committed, are conducted in accordance with the present Code.  4. Outside the territory of Turkmenistan, its criminal procedure law is applied on sea, river or air vessels flying the State flag of Turkmenistan or bearing its identification marks and assigned to the ports of Turkmenistan. Article 4: Application in the territory of Turkmenistan of the criminal procedure law of a foreign State  The application in the territory of Turkmenistan of the law of criminal procedure of a foreign State by the investigative and judicial authorities of the foreign State or, on their instructions, by the body conducting criminal proceedings, is permitted if it is provided for in an international treaty ratified by Turkmenistan. Article 5: Application of the law of criminal procedure to foreign citizens and stateless persons  1. Criminal litigation in respect of foreign citizens and stateless persons is conducted in accordance with the rules of the present Code.  (2) The peculiarities of criminal litigation carried out in respect of persons enjoying diplomatic and other privileges and immunity shall be determined by Chapter 50 of this Code. Article 6: Clarification of certain names and terms contained in this Code  The names and terms contained in this Code shall have the following meaning:  SOME BASIC CONCEPTS AND TERMS IN THE CODE 1- ALIBI - the suspect's or the accused person's being in a different place at the moment when the crime is committed 2- ENQUIRER - an official of the body of enquiry, possessing the legal right or authorized by the head of the body of enquiry 3- ENQUIRY - the form of the preliminary inquisition, carried out by the enquirer (investigator) on a criminal case for which the conducting of the preliminary investigation for criminal liability until court 4- CLAIMANT - a person making a claim to court for infringed or abused rights 5- PARTY OF THE PROSECUTION - the prosecutor, the victim, his legal representative, the civil claimant and his representative 6- PARTY OF THE DEFENCE - the accused as well as his legal representative, the counsel for the defence (lawyer), the civil defendant and his legal representative and representative 7- LAWYER- it has wide meaning. 8- NON-PARTICIPATION- recognition of being not involved or non proof of involving. 9- FIRST INSTANCE COURT - the court, examining a criminal case on the merits and legally authorized to pass the sentence and to take decisions in the course of the pre-trial procedure on a criminal case; 10- SECOND INSTANCE COURT - the courts of the appeals and of the cassation instances 11- VERDICT - the decision as to whether the man on trial is guilty or not guilty 12- PUBLIC PROSECUTOR - an official of the prosecutor's office acting for the prosecution in the name of the state in a court hearing of a criminal case; 13- PRE-TRIAL PROCEDURE - criminal court proceedings as from the moment of receiving a communication on the crime up until the prosecutor directing the criminal case to the court to be examined. 14- CASSATION INSTANCE - the court examining on appeal criminal cases upon the complaints and presentations against the sentences, rulings and resolutions of the first instance and of the appeals instance court, which have not yet entered into legal force 15- HEAD OF A BODY OF INQUEST - the official of a body(prosecutor, internal affairs, national security….) of inquest, including deputy head of a body of inquest authorized to give orders to carry out an inquest and urgently investigative actions. 16- NIGHT TIME - an interval of time from 22:00 to 6:00 local time 17- resolution-решение 18- investigative jurisdiction-подследственность 19- preliminary investigation, inquest-предварительное следствие 20- court of inspection- суд надзорной инстанции 21- petition-ходатайство 22- sanction-санкция 23-proceeding- производство по делу (cumulative of action during procedure) 24- case papers-материалы дела 25- ruling-постановление 26- lawsuit, hearing, trial- судебное разбирательство 27- search-обыск 28- home, dwelling-жилище What is the aim of Code? 1- Protect the person from unlawful and ungrounded accusations and conviction, and from the restriction of his rights and freedoms 2- The criminal prosecution to the guilty persons shall correspond to the purpose of the criminal court proceedings 3- Refuse from the criminal prosecution of the non-guilty ones, their relief from the punishment and the rehabilitation of everyone, who has been groundlessly subjected to criminal  Principles of Criminal Litigation 1- Legality: - The investigator, the body of inquiry, the inquirer, the court, the prosecutor, shall have to follow all requirements of proceeding with accordance to the present Code. - Violation of the norms of the present Code by the court, by the prosecutor, by the body of inquiry or by the inquirer during the criminal court proceedings shall entail recognizing the proof obtained in this way as being inadmissible. 2- Administration of Justice by the Court Alone - justice on a criminal case in the Turkmenistan shall be administered only by the court. - Nobody shall be recognized as guilty of committing a crime and subjected to a criminal punishment other than under the court sentence and in accordance with the procedure, established by the present Code. - The jurisdiction of the court and its competence established by present Code and it shall not be changed. Establishment of extraordinary court not permitted.  - The verdicts and other decisions and rullings given during proceeding with a lack of jurisdiction and competence have to be abolished. 3- Protection of the Rights and Freedoms of Man - Everyone have the right for hearing for protection of rights and freedoms. - State provides just to inflicted person. 4- Respect of the Person's Honour and Dignity - During the course of criminal court proceedings shall be prohibited the performance of actions and the adoption of decisions, degrading the honour of the participant in the criminal court proceedings, and treatment humiliating his human dignity 5-Immunity of the Person - Everyone have rights for freedom and for personal inviolability. No one can be detained on the suspicion of committing a crime or put under arrest in the absence of the legal grounds for this, envisaged in the present Code. - Arrested or detained person should be immediately informed the reason of detention and classification of his crime on which he suspected or accused - The court, the prosecutor, the body of inquiry and the inquirer are obliged to immediately relieve any person, who has been illegally detained or illegally deprived of freedom, or illegally placed into a medical or psychiatric stationary hospital, or has been held in custody over a time term in excess of that stipulated by the present Code - No one of the participants in criminal court proceedings shall be subjected to violence or torture or to other kinds of cruel or humiliating treatment, degrading his human dignity r creating a threat to his life or health. 6- Privacy of Correspondence, Telephone and Other Talks, of Postal, Telegraph and Other Communications - Restriction of the citizen's right to privacy of correspondence, of the telephone and other talks, of postal, telegraph and other communications shall be admissible only on the ground of a court decision. - Putting under arrest postal and telegraph messages and their seizure at post offices, the monitoring and recording of the telephone and other talks, receiving information on connections between users and/or users' apparatuses may be carried out only by Code. 7- Presumption of Innocence - The accused shall be regarded as non-guilty until his being guilty of committing the crime is proved in accordance with the procedure, stipulated by the present Code, and is established by court sentence, which has entered into legal force. - The suspect or the accused is not obliged to prove his innocence. The burden of proving the charge and of refuting the arguments cited in defense of the suspect or of the accused, shall lie with the party of the prosecution. - All doubts concerning the guilt of the accused, which cannot be eliminated in accordance with the procedure established by the present Code, shall be interpreted in favour of the accused. - The verdict of guilty cannot be based on suppositions. 8. Parties' Adversarial Nature (Equal and competing grounds for just proceeding) - The criminal court procedure shall be conducted on the basis of the adversarial nature of the parties. - The functions of the accusation, of the defense and of the resolution of a criminal case are set apart from one another and cannot be imposed upon one and the same body or upon one and the same person - Burden of proof related to the prosecutor - Lawyer has all rights to use necessary tools for defense - The court shall create the necessary conditions for the parties to discharge their procedural duties and to exercise the rights, granted to them. - The parties of the prosecution and of the defence shall enjoy equal rights before the court. 9- Freedom of judges. - The judge and assessor (juror) shall assess the proof in accordance with their inner conviction, based on the aggregate of the proof presented in the given criminal case, and shall rely in doing this on the law and on their conscience. 10 Thorough, objective and fully investigation of the case - The prosecutor, the investigator, the inquirer and judge obliged to take all necessary measures for thorough, objective and fully investigation and obliged to bring to light conditions to punish or to acquit. (+ mitigate and aggravate) - The prosecutor or investigator don’t have right to lay his obligation to the side of defense - It is prohibited to take statement for suspect or accused using threat and violence. 11- Release witness to give a statement - Every one have right to not give a statement against to his relatives. The statements shall be deemed illegal if it was obtained using treat or violence. - Refusal of giving a statement to the relatives doesn’t lead to any criminal liabilities. 12- Transparency of the courts’ proceedings - All court examination should be bring publicly. Except the cases related to states’ secret. - To prevent the disclosure of private life intimacy of the participants it is permitted to proceed the examination not publicly cases such as rape and underage persons. - But the verdict of the cases should be announced publicly. 13- The language of the proceeding - To participants in criminal court proceedings who have no command of the language in which the proceedings on the criminal case are conducted, shall be explained the right to make statements, to give explanations and testimony, to lodge petitions and complaints, to get acquainted with the materials of the criminal case and to take the floor in the court using their native language, of which they have a good command, and to make use free of charge of interpreter's in accordance with the procedure. - The investigation and the trial documents are subject to obligatory presentation to the suspect and to the accused, as well as to the other participants in the criminal court proceedings, said documents shall be translated into the native language of the corresponding participant in the criminal court proceedings. 14- Right to File Appeals Against Procedural Actions and Decisions - The actions and decisions of the court and of the prosecutor may be appealed against in accordance with the procedure. - Every one convict shall have the right to the revision of the sentence, for pardon pleased or ask for mitigation of punishment.  Criminal Prosecution - For the purposes to implement the obligations of criminal proceedings the investigation with in the competence of itself, in every case of revealing the signs of a crime shall be obliged to take measures, to establish the event of the crime and to expose the person or the persons, guilty of committing the crime or their guiltiness. - In every case of revealing the signs of a crime, the prosecutor, the body of inquiry and the inquirer shall be obliged to take measures to establish the event of the crime and to expose the person or the persons, guilty of committing the crime. - Criminal investigation obliged to create conditions for victim for just proceeding and to take measures to compensate the damages. - Investigation holding its duties independently. The interference to its works punishable by law. (????) - Statutory demands of prosecution shall be obligatory for execution by all institutions, enterprises, organizations, officials and citizens.  Grounds for Refusal of the Institution of a Criminal Case and for Termination of Criminal Case or Criminal Prosecution 1 - A criminal case cannot be instituted or instituted criminal case shall be subject to termination on the following grounds: 1) absence of the event of a crime 2) absence of the corpus delicti(element of the crime) in the act 3) expiry of the deadlines for criminal prosecution 4) remove from criminal liability with the document of pardon 5) to not reach to the age of criminal liability at the time of commencement of the crime  6) reconciliation of victim if the criminal case may be instituted only upon his application, with the exception of cases envisaged by the 2nd, 3rd , 4th part of Article 213 of the present Code What mentioned in the Art 213? Preliminary investigation. 7) In the absence of victim application if the case may be instituted upon victims’ application or prosecutors’ statement except 4th part of Art 213  8) Death of the suspect or of the accused, with the exception of cases when the proceedings on the criminal case are necessary for the rehabilitation of the deceased or involvement other parties to the case 9) Existence of the sentence on the same accusation or of the ruling of the court or the resolution of the judge on the termination of the criminal case on the same accusation, which has come into legal force, with respect to the suspect or to the accused 10) Existence with respect to the suspect and to the accused of an uncancelled resolution of the body of inquiry of the investigator or of the prosecutor on the termination of the criminal case on the same accusation 2) If the conditions stipulated at items 1-3-4 of the 1st part of the Art 31 exist during the court proceedings the court shall bring the examination to the end. Court shall give acquittal verdict to the conditions stipulated at items 1-2 of the 1st part of the Art 31 and release from punishment with conviction verdict to the conditions stipulated at items 3-4 of the 1st part of the Article 31 3) The criminal case shall be subject to termination on the ground, envisaged by item 2 of the first part of this Art, if the criminality and punishability of the action in question have been eliminated by the new criminal law before the sentence came into legal force. 4- The criminal proceeding shall be continued if in case of refusal of the accused of termination of conditions stipulated at items 3-4 of the 1st part of the Art 31 -There is 3 possibility toward to the person who have committed a crime. 1- To sentence 2- To terminate 3- To acquit Justification to sentence Art. 32 - Suspect or accused shall be sentenced if his quilt proven during the prosecution and court hearing by examining all evidences without any doubts. Justifications for the termination of the criminal cases - If the conditions lead to the impossibility to continue the criminal case the inquiry, inquirer, prosecutor, judge or court gives decision or legal resolution(writ, rulling) for termination. **Conditions: - For the committed crimes of little and average gravity on conditions stipulated at items 1-2 of the 1st part of the Art 31 - If accused and victim refusing the accusation because of non- involvement. - Reconciliation of accused and victim on conditions stipulated at items 6 of the 1st part of the Art 31 - On conditions stipulated at items 3-10 of the 1st part of the Art. 31 - On conditions stipulated at Art. 71- 73 of Criminal Code of TM - And on other conditions stipulated by Criminal Code of Tm Justification to acquit Art. 32 - The Court of 1st instance gives the acquittal verdict. - The conditions for acquittal: 1) absence of the event of a crime 2) absence of the corpus delicti(element of the crime) in the act 3) in case of non-involvement  Criminal Proceedings 1- Combine criminal case 2- Separate criminal case 3- Abeyance of case 4- Termination of case 5- Completion of case 1- Combine (joint) criminal case ****In a single procedure may be combined criminal cases with regards to: - several persons, who have perpetrated one or several crimes in complicity - one person, who has committed several crimes - a person accused for concealment, not promised in advance. note: Art. 210 *** Restrictions to combine the proceedings: - If the criminality deeds of accused persons don’t have connectivity - If jointly proceedings put the obstacles to way of investigation or examination - The decision of the body of inquiry or ruling of the court should be for combination of cases 2- Separate criminal case *** The investigator and court have right to separate the proceedings with regards to: - According to Art. 46 - If accusation includes the state secrets. - If in accusation one of the offenders underage person. - If it is too complex to define the person for criminal liability ** Separate one part of proceeding and send to court - If the time for detention or investigation close for expiring the investigator have right to separate one part of proceeding, taking into account of completely investigation been held and separation doesn’t hinder rest of the investigation. - If during the criminal proceeding the investigation found new criminal traces, there is possibility to separate the criminal proceedings. - Separation of proceedings should be based on decision of investigation or court ruling. The investigation body obliged to send copy of decision on separation of case during 1 day. 3- Abeyance of case - Referring to the art.308 of present Code there is grounds for abeyance of the case(temporary termination): 1- Fugitive status 2- Suffering from illness 3- Insanity 4- Undefined liability of person ** If conditions above disappearing the proceeding should be renewed with decision or ruling 4- Termination of case -The grounds for termination at the part 1 of Art. 31 and 33 -In case of canceling the decision or ruling on termination of case, the case should be renewed in the frame of time expiry. - The termination and renewing about case should be informed to all parties. Article 50. Computation of the Term - The time terms stipulated by the present Code, shall be counted in hours, days and months. - When calculating the terms in time and day, from which the course of the time term begins, shall not be taken into account, with the exception terms of the detention in custody. - The term, calculated in days, shall expire midnight of the last day. - The term, counted in months, shall expire on the corresponding day of the last month, and if this month does not have the corresponding day, the term shall be seen to end on the last day of this month. - If the end of the term falls on a non-working day, seen as the last day of the term shall be the first working day next to it. - In the case of detention, the term shall be calculated as from the moment of the actual detention. - The term shall not be seen as missed, if the complaint or petition(another document) is taken to the post office handed over to the person authorized to accept these before an expiry of the term. - The term shall not be seen as missed, as concerns the persons held in custody or at a medical treatment if the complaint or another document is handed over before an expiry of the term to the administration of the place of the preliminary detention or of the medical treatment Article 51. Restoration of a Missed Term - All procedures shall be deemed invalid after expiry of the term. - The term, missed because of serious reasons, shall be restored on the grounds of a resolution of the inquirer or the judge. Note: Restoration of the term effects only for the person who reasonably missed the term. - Refusal in the restoration of the term may be appealed against in the procedure established by the present Code. - Upon the petition of an interested person, the execution of the decision, appealed against with missing the fixed term may be suspended until the question about the restoration of the missed term is resolved.  Participants and Institutions in the Criminal Court Proceedings Article 52. 1. The Court - The examination of criminal cases by the court should be in conformity with principle of impartiality, independence and legality. - The justice in Turkmenistan carry out by: 1- Supreme Court of Turkmenistan 2- The Court of Welayats 3- The Court of Etraps 4- The Court of Cities with status of welayat - All criminal cases examine before the appointed judges and selected assessors. - In the Court of first instance the criminal cases with little and medium gravity examine by judge alone(except crimes committed by under age person). Other cases in composition of judge and two assessors. - The assessors have equal right with the judge. - The cases examining in cassation order, supervising order and retrial the case in accordance of new circumstances shall examined at least by three judges. - Examination of criminal case by Plenum of Supreme Court shall fulfilled by 2/3 of the judges. ** IMMUTABILITY OF COURT COMPOSITION - Each case should be examined in same composition of the judge(s). If one of the judges doesn’t have opportunity to continue the session, he replaces with other judge and trial should be start from the beginning. Except art.55 - The cases should be postponed if chairman leaves from composition of the court. Legal Powers of the Court(Competence of the Court regulated by law) - recognize a person as guilty of committing a crime and to mete out a punishment to person. - recognize a persons’ guiltiness and give acquittal decision. - apply towards a person coercive measures for an educational influence and medical treatment - cancel or change the decision, passed by the lower placed court  Intermediate ruling- hususy kesgitnama - If during the court examination of a criminal case are revealed the circumstances which were conducive to the perpetration of the crime, to the violation of the citizens' rights and freedoms or to the other law offences, committed in conducting the inquiry or the preliminary investigation, or when the case was examined by a lower-placed court, the court shall have the right to issue an intermediate ruling, in which the attention of the corresponding organizations and officials shall be drawn to the given circumstances and facts of the law offences, demanding that the necessary measures be taken. - The court have the right to issue an intermediate ruling also in other cases if it finds this necessary.  The Prosecutor - The prosecutor shall be seen as an official authorised within the scope of authority. - To conduct on behalf of the State the criminal prosecution in the course of criminal proceedings - Exert supervision over the procedural activity of the bodies of inquiry and of the bodies of preliminary investigation.  The Investigator - An investigator is an official authorized to conduct a preliminary investigation on a criminal case within the scope of authority. The investigator is authorized to: - to institute a criminal case in accordance with the procedure. - to direct on his/her own the course of investigation, to take decisions on the performance of investigative or procedural actions, with the exception of cases when sanction of the prosecutor is required in conformity. - to give to an inquiry body in the cases and in accordance with the procedure established by the present Code, written orders to be executed without fail on carrying out operational-search measures, on the performance of individual investigative actions, on the execution of decisions on detention, on the arrest or on the performance of other procedural actions and to receive assistance in the performance of investigation. - to establish an article and the amount of accusation to the accused person. - to sent the case for examining to the court - appeal the directions of prosecutor in the case of disagreement. It should be appealed in a written form to the higher prosecutor. Participants in the Criminal Court Proceedings on the Side of the Defence The Suspect - 1) with respect to whom a criminal case is instituted on the grounds and in accordance with the procedure. - 2) who is detained. - 3) with respect to whom a measure of restriction was applied before bringing the charge. - The period of detention for suspect should not exceed 72 hours, and the period of measures of restriction of the arrest should not exceed 10 days.  The Lawyer - No longer than 24 hour after: 1- Interrogation of suspect 2- Detention of suspect 3- Accusation 4- Being arrested until accusation, the presence of lawyer permitted right after the protocol for detention or the decision for the measures of restriction. Who can be the lawyer?: 1- A person who protects the legal interests of the suspect, accused or victim. 2- The representatives of the public unions the represent their members. 3- The close relatives and other representatives. - One and the same person cannot act as the lawyer for the defense for two suspects or accused, if the interests of being acquitted of one of them contradict the interests of the other. - The lawyer for the defense can be invited by the suspect, by the accused or by his legal representative, or by the other persons on the orders or with the consent of the suspect or of the accused. - The request of the suspect and of the accused, the participation of the lawyer for the defense shall be provided for by the inquirer, by the investigator, by the prosecutor or by the court. - If the invited lawyer for the defense fails to appear in the time stipulated by Code the inquirer, the investigator, the prosecutor or the court have the right to suggest another lawyer for the defense or to appoint lawyer for defense by the Consulting Office. - Consulting Office obliged to provide lawyer for defense.  Obligatory participation of the lawyer for the defense 1- if the suspect or the accused asked for providing lawyer. 2- if the suspect or the accused is a minor. 3- if the suspect or the accused cannot exercise his right to the defense on his own because of his physical or psychological defects.(blind etc.) 4- if the hearing related to sent accused to the psychiatric clinic. 5- if the suspect or the accused does not have a good command of the language in which the proceedings on the criminal case are conducted or uneducated person. 7- if the person is accused of committing an especially grave crime. 8- if the accused is arrested. 9- if case examining with participation of prosecutor.  Other participants 1- The witness 2- The expert 3- The specialist 4- The interpreter 5- Witness(of the search)  The Witness -- Who can be the witness? - Except the people stipulated at the art.93/1, any person who may be aware of certain circumstances of importance to the investigation can be seen as witness. - Witness can be summoned for interrogation and statement. Who can not be subject for interrogation as a witness? Art.93/1 : - Lawyer, the counsel for the defense of the suspect and of the accused - about the circumstances, which have become known to him in connection with applying to him/her for legal aid. - Representer of victim, civil claimant or civil defendant, about the circumstances, which have become known to him in connection with rendering legal advice. - The people with disability who have difficulties in understanding the importance of the circumstances for case. - Inquirer, investigator, prosecutor and judge, assistant of the judge. Note: if during investigation the authorized person faces with infringements and etc. The rights of the witness: - Refuse to give statement against his/her relatives. - Give rejection(objection) to interpreter. - Reimbursement. The duties: - Give true answers during interrogation. - To be present if summoned Note: Refusing for witnessing could be lead to the administrative liability. Adm. 177(1) and 177(2) Note: Witness has criminal liability for false witnessing. Criminal Code of TM art.201 Note: Refusing for witnessing also leads to the criminal liability. CCT. Art.202 Note: Witness shall not take a place as a lawyer, prosecutor, judge or representatives in criminal litigation.  Circumstances precluding the participation in criminal court proceedings. -- The judge, prosecutor, investigator and the inquirer cannot take part in the proceedings in a criminal case, if: **Objective measures: 1- Circumstances, giving a ground to believe that they are personally, whether directly or indirectly, interested in the outcome of the given criminal case. 2- He is the victim, civil claimant, civil defendant or witness in the given criminal case or has participated as a expert, specialist, interpreter, attesting witness, counsel for the defence or legal representative of the suspect or of the accused, representative of the victim, of the civil claimant or of the civil defendant. 3- He is a close relative or a relation of any one of the participants in the 2nd part of the art. in the proceedings in the given criminal case. ** Subjective measures: 1- There is grounds for doubt about his fairness and impartiality. 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.