Court activities when initiating criminal proceedings in Tajikistan: past and present
The Criminal Procedure Code of the Republic of Tajikistan (hereinafter - CPC RT) again provides for the right of the court to initiate criminal proceedings and its right to make decisions in the preliminary investigation stage to restrict the constitutional rights and freedoms of participants of pre-trial proceedings. In this case it means that Part 1 of Article 35 of CPC RT gives the court extensive criminal procedural powers to influence the course of pretrial proceedings and its results through the implementation of its right to institute criminal proceedings. The court has had this right since the Soviet era. The analysis of this power of the court suggests that while retaining the court's right to institute criminal proceedings the legislator thereby gave the court a function of criminal prosecution, which contradicts Part 2 of Article 20 of CPC RT, "the court is not a prosecuting authority and does not act as the prosecution or the defence. The court allows the parties to exercise their procedural rights and obligations". It should also be noted that the provision stipulated in Paragraph 15 of Article 35 of CPC RT about the right of the court to initiate criminal proceedings in cases stated in the Code is not actually provided for, as CPC RT lacks legal rules governing cases and the mechanism of the court's procedural decisions to initiate criminal proceedings and assigning cases for preliminary investigation to appropriate jurisdictional authorities. Tajikistan law-makers should fix a provision in CPC RT stating that the court, in accordance with the principle of adversarial proceedings and equality of the parties as provided in Paragraph 2 of Article 88 of the RT Constitution and Article 20, Paragraph 1 of CPC RT, should not take on the role of a prosecuting authority. Otherwise there is a paradoxical situation: the prosecutor, who is a prosecuting authority, does not charge a person with committing a crime, while the court (judge) simultaneously decides to institute criminal proceedings against the defendant on a new charge and thus puts him in the position of the suspect or the accused and actually tells the preliminary investigation what the essence of the new charges against the person should be. The court (judge) must in all cases be exempt from the rights and obligations to initiate criminal proceedings, in particular against individuals, as initiating this case puts the court in the position of an authority prosecuting and then solving the same criminal case on the merits. Even in cases of perjury, established during the trial in a criminal case, the court should not have the right to institute criminal proceedings. In such cases, the court considering the criminal case on the merits is required to make a particular decision and thereby send the necessary materials of the criminal case to the prosecutor who carefully studies them and is authorised to decide whether to institute criminal proceedings, refuse to initiate them or redirect them. This judgment is consistent with Part 2 and Part 3 of Article 35 of CPC RT that rule, "if the court hearing the criminal case will reveal violations of human rights and freedoms, as well as violations of the law during the inquiry, preliminary investigation or court proceedings, the court, the judge is authorised to pass a rider (ruling) concerning violators"; "the court, the judge is empowered to pass a rider (ruling) in other cases as well.