"Reasonable suspicion." What the court must verify before restricting freedom

"Reasonable suspicion". What the court must check before restricting freedom

From July 1, 2027, judicial control at the pre-trial stage should become broader. As follows from paragraph 9 of the presidential decree of August 14, 2026 (UP-160), when considering applications for the application of procedural coercion measures, the examining magistrate will assess not only the legality and grounds of the detention, but also the sufficiency of the grounds for suspicion or bringing charges. If the judge has doubts, they will be able to request additional documents while ensuring the secrecy of the investigation.

Professor of the Department of Criminal Procedure Law at Tashkent State Law University, Doctor of Law Dildora Bazarova, in an article for Gazeta, explains what exactly the examining magistrate will have to check and how the new approach differs from the current model.

The key issue of the reform is not the appearance of another legal term, but what exactly the court will have to check.

The Criminal Procedure Code (CPC) already distinguishes between detention, declaring a person a suspect, bringing them in as an accused, sending a case to court, and conviction. These stages cannot be perceived as a simple ladder, where with each step only a conditional "percentage of proof" grows. Each of them has its own procedural task, and Article 82 of the CPC establishes a general subject of proof for sending a case to court and a guilty verdict.

The first important boundary is designated by Article 47 of the CPC. A person is recognized as a suspect if there is data regarding them committing a crime, but this data is not yet sufficient to bring them in as an accused.

Article 359 links the acquisition of this status either with detention under Article 221 or with the presence of data in the case that gives grounds to suspect the person of committing a crime. In other words, suspicion must already relate to a specific person and have a factual basis, but within the meaning of the Code it does not yet reach the level of an accusation.

Detention is a separate issue. Articles 220−221 provide for short-term deprivation of liberty of a suspect in the presence of specific circumstances: if the person is caught while committing a crime or immediately after it, if eyewitnesses directly point to them, clear traces of a crime are found on or with them, or there is other data in combination with additional conditions specified in the law.

Article 225, in turn, requires checking the grounds for detention and releasing the person if there are no grounds for it.

Consequently, the presence of data allowing a person to be suspected of a crime does not in itself mean that there are grounds specifically for their detention.

A similar approach was formulated by the European Court of Human Rights. In the case of Fox, Campbell and Hartley v. the United Kingdom, the ECHR pointed out that reasonable suspicion implies the existence of facts or information that would satisfy an objective observer that the person concerned may have committed the offense. In the case of Murray v. the United Kingdom, the court simultaneously stressed that such data is not required to reach the level necessary to bring charges or a conviction.

The next stage is bringing a person in as an accused. Article 361 of the CPC does not contain a separate formula like "a sufficient body of evidence", but requires detailing the charge: stating the essence of the act, place, time and other material circumstances, as well as its criminal legal qualification.

Taking into account Articles 47 and 226, this means that the factual basis must allow moving from an assumption about a person's possible involvement to a specific assertion about the act committed by them.

At the same time, bringing a person in as an accused does not in itself mean that the proof process is completed.

The investigation continues, evidence can be collected and verified, and the charges can be changed, supplemented, or dropped. Therefore, the grounds for bringing charges should not be confused with the grounds for sending a case to court.

Under Article 375, the preliminary investigation ends when the investigator considers the collected evidence sufficient to draw up an indictment. After the defense gets acquainted with the case materials, an indictment is drawn up if the conclusion about the sufficiency of grounds for transferring the case to court remains.

Then, the validity of the charges by evidence, the correctness of the qualification, the completeness of the investigation, and the defense's arguments are checked by the prosecutor. After the case enters the court, the judge, in turn, finds out whether there are sufficient grounds to consider it in a court session.

Article 82 of the CPC, entitled "Grounds for charge and conviction", requires proving the same main scope of circumstances both for sending a case to court and for a guilty verdict: the event and circumstances of the crime, its commission by this person, the form of guilt, motive, goal, and other circumstances provided by law.

During the preliminary investigation, the conclusion on proof is formed by the prosecution authority and undergoes prosecutorial verification. In court, the same conclusion must withstand an adversarial examination of evidence in compliance with the presumption of innocence.

Article 463 of the CPC prohibits basing a guilty verdict on assumptions: guilt must be proven during the trial. The Plenum of the Supreme Court also clarifies that the court's conclusions must be based on reliable evidence after verifying the circumstances of the case and eliminating significant doubts and contradictions.

Supreme Court statistics show the practical importance of this boundary. In 2024, courts acquitted 723 people, and articles that the Supreme Court named unreasonably imputed by the preliminary investigation authorities were excluded or reclassified from the charges of 14,991 persons.

These data do not mean that every initial suspicion in such cases was unlawful. But they show that the conclusion of the investigation authority is not equal to the final judicial conclusion.

It is also important to separate two questions: how grounded the suspicion or charge is and whether there are grounds for a specific preventive measure.

Today, Article 243 of the CPC allows considering the issue of remand in custody or house arrest in relation to a detained suspect or accused. After that, the court checks the grounds provided for by Articles 236 and 242 and the necessity of a specific measure: the risk of absconding, continuing criminal activity, obstructing the establishment of the truth, as well as the validity of the conclusion that a milder measure cannot be applied. The Plenum of the Supreme Court separately points out that in doing so, the court does not consider the question of the person's guilt or innocence.

The current CPC does not oblige the examining magistrate to separately check whether there is sufficient evidence to recognize a person as a suspect or to bring them in as an accused. When deciding on a preventive measure, this procedural status is already accepted as established, and the court assesses primarily whether there are grounds for restricting freedom and how necessary the chosen measure is.

The status of a suspect or accused alone is not sufficient for remand in custody.

This is precisely what the decree (UP-160) should change. From July 1, 2027, along with the grounds for applying a measure, the judge will have to separately check the legality and grounds of detention, as well as the sufficiency of grounds for suspicion or bringing charges. If the presented materials prove insufficient, they will be able to request additional documents.

Thus, the factual basis of suspicion and charge itself becomes the subject of judicial control when deciding on the application of procedural coercion.

When checking suspicion, it is important for the examining magistrate to assess not the quantity of presented materials, but their ability to objectively link a specific person to a specific crime. In itself, the decision to recognize a person as a suspect does not prove such a connection.

Therefore, the court must see what information forms the basis of the suspicion, where it was obtained from, and whether it really allows explaining the possible involvement of a specific person. At the same time, such a check should not turn an interim session into a hearing on the merits of a criminal case.

If we are talking about a charge, the subject of control changes. The factual basis must correspond to a specific statement about the committed act, its material circumstances, and criminal legal qualification. But even at this stage, the examining magistrate should not answer the question of guilt in advance. Their task is to establish whether there are sufficient grounds for the corresponding procedural decision, and not to prejudge the subsequent assessment of evidence by the court of first instance.

After checking the factual basis of the suspicion or charge, the court separately assesses the necessity of a specific measure of procedural coercion.

Another important issue is the procedure for working with additional documents, which, under UP-160, the examining magistrate will be able to request on their own initiative. If such materials affect the conclusion regarding the validity of the suspicion or charge, the defense must have a real opportunity to familiarize itself with their essential content and present its objections, subject to the restrictions necessary to preserve the secrecy of the investigation.

Otherwise, expanding the court's activity may weaken the adversarial nature instead of strengthening judicial control.

The terminology of the reform also requires separate attention. UP-160 uses the expression "grounded suspicion" specified as Prima Facie, whereas in the practice of the ECHR, in relation to the initial deprivation of liberty, the concept of reasonable suspicion is primarily used.

In the Anglo-American tradition, prima facie usually means an initially sufficient evidentiary basis capable of supporting a legal conclusion in the absence of rebuttal. These concepts may overlap, but they are not universal synonyms.

Therefore, for national legislation, what is more important is not the borrowed name itself, but the content of the check being conducted: what facts the prosecution must present, what exactly the examining magistrate checks, and what questions at this stage remain outside their competence.

Ultimately, the effectiveness of the reform will depend on whether the court can see its factual basis behind a procedural document and at the same time not go beyond its task at this stage.

"Grounded suspicion" should not be reduced either to a formal check for the existence of a decision or to a premature resolution of the question of guilt. Its meaning lies in independent judicial control over whether there are sufficient grounds for state interference in human rights.