Matters relating to the witness's lawyer in criminal proceedings

International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 1 Matters relating to the witness's lawyer in criminal proceedings Pulatov Azizkhon Saidakbarovich Higher School of Judges independent applicant Doctor of Juridical Sciences, Associate Professor Abstract: This article analyzes issues related to the witness's lawyer in criminal proceedings. Most importantly, it emphasizes the issues of the witness's lawyer's authority to protect the rights and legitimate interests of the witness and provide him with the necessary legal assistance in the manner prescribed by law. In this article, along with national and foreign legislation, the opinions of scientists are also analyzed. Keywords: criminal case, criminal procedure, witness, immunity, lawyer, defense, guarantee, interest, foreign experience, rights and freedoms. In accordance with Article 661 of the Criminal Procedure Code, a witness's lawyer is a person authorized to protect the rights and legitimate interests of a witness and provide him with the necessary legal assistance in the manner prescribed by law. In practice, a defense attorney also has such a procedural function. According to Article 49 of the Criminal Procedure Code, a defense attorney is also a person authorized to protect the rights and legitimate interests of suspects, accused persons, and defendants in the manner prescribed by law, and to provide them with the necessary legal assistance. However, the defense counsel has witness immunity, and the witness's lawyer is deprived of the right to witness immunity provided for in Article 115 of the Criminal Procedure Code. Also, if we compare the rights of a witness's lawyer and the rights of a defense attorney in criminal proceedings, in addition to the specific rights of the defense attorney, they have a conceptual similarity, which can be seen in the following table: Table 2 Article 49 of the Criminal Procedure Article 661 of the Criminal Procedure International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 2 Code Code Defender's rights Rights of a witness's lawyer • to know what the person protecting their interests is suspected of or accused of; • to participate in the interrogation of a suspect, to be present when charges are brought against a person, and to participate in the interrogation of the accused, as well as in other investigative actions conducted with their participation, and to ask questions to suspects, accused persons, witnesses, experts, and specialists; • submitting written comments on the conduct of the investigative action in which he participated; • familiarization with documents related to procedural actions carried out with the participation of the suspect or accused;  to know in connection with which criminal case the person whose rights and legitimate interests is being protected was summoned;  participate in the questioning of a witness, as well as in other investigative actions with their participation, give them brief advice;  asking questions to the witness with the permission of the person conducting the interrogation;  to declare a recusal of the interpreter participating in the questioning of the witness in the manner prescribed by law;  after the interrogation, state statements about violations of the witness's rights and legitimate interests, which are subject to inclusion in the interrogation record; According to Article 115 of the Criminal Procedure Code, the reasons for not providing witness immunity to a witness's lawyer can be various. However, in our opinion, when solving this issue, it is necessary to pay attention to two aspects. Firstly, the procedural status of the subjects whose interests are protected by the defense counsel and the representative is an important issue. Second, the continuity, regularity, and consistency of the participation of subjects whose interests are protected by a defense attorney or representative in criminal procedural relations. Considering the first category of issues, it should be noted that the subjects of criminal proceedings, such as the defense attorney and the witness's lawyer, undoubtedly International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 3 perform the functions of protecting the procedural interests of participants with different procedural statuses and providing them with the necessary legal assistance. However, the problem is that if the defense counsel carries out the task of protecting the procedural interests of the person suspected and accused of committing a crime, which is the cause of the emergence, course, and development of criminal procedural relations, and provides them with the necessary legal assistance in this regard, then the procedural status of the witness, whom the witness's lawyer protects and from whom legal assistance is received, is not as bright as that of the suspect, the accused, the defendant. However, from the point of view of its significance, a witness is an important source for the emergence, course, and development of criminal procedural relations, an integral procedural means of proof. Because a witness plays a significant role in confirming or denying the guilt or innocence of a suspect, accused, or defendant in committing a crime, that is, in the process of proof. Regarding the second category, the participation of the subjects whose interests are protected by the defense counsel or representative in criminal procedural relations is not as continuous, regular, and organic as the central subjects of criminal proceedings - the accused, the defendant. The witness's participation in criminal proceedings is limited to performing certain investigative actions for a short period of time. This situation indicates that the witness's lawyer's procedural activity is not at a high level. Returning to the first issue, the suspect, the accused, and the defendant, as the central subject of criminal proceedings, are protected from testifying against themselves and their relatives. Thus, the suspect, the accused, the defendant participates in the conduct of the criminal case as a procedural subject, not disclosing known information related to the circumstances of the criminal case, keeping it in his possession. Indeed, according to Article 19 of the Criminal Procedure Code, the burden of proof lies with the prosecutor. In this regard, the witness's participation in criminal proceedings has a somewhat different direction. As noted earlier, the procedural duty of a witness is inextricably linked with the activity of proving. Most importantly, the witness is obligated to disclose all International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 4 information relevant to the criminal case. He does not have the right, will, or discretion not to disclose such information. For this reason, there may not be information that is prohibited from disclosure between the witness's activities within the framework of performing procedural duties and their lawyer. This means that the witness's lawyer does not have information relevant to the criminal case that is not subject to disclosure. Therefore, it is impractical to protect the interests of a witness's lawyer through witness immunity, based on the fact that the witness has the right not to disclose information about the circumstances of the criminal case. However, such information may arise in the process of protecting the interests of witnesses with a certain procedural status and providing them with legal assistance. A witness in question is a witness whose personal information is confidential for the purpose of ensuring personal safety. According to Article 118 of the Criminal Procedure Code of our country: if there are grounds to believe that the circumstances to be established reflect professional secrecy or relate to confidential aspects of a person's life, the investigator, inquiry officer, and court, during the interrogation of a witness or victim, must take measures to prevent the disclosure of these circumstances. Also, according to the requirements of Article 270 of the procedural law, if there is sufficient information to believe that the victim, witness, or other persons participating in the case, as well as members of their families or close relatives, are threatened with murder, the use of force, the destruction of property, or damage to property, or other unlawful actions, the investigator, inquiry officer, prosecutor, and court are obliged to take measures to protect the life, health, honor, dignity, and property of these persons, as well as other measures. In accordance with these procedural requirements, Article 380 of the Criminal Procedure Code provides for the provision that in the appendices to the indictment - in order to ensure the safety of witnesses and other participants in the proceedings, their International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 5 pseudonyms are indicated in the list of persons to be summoned to the court session, and information about persons in need of security is submitted to the court with a seal along with the introductory parts of the protocols of investigative actions conducted with their participation, with which only the prosecutor approving the indictment and the judge considering the case can familiarize themselves. At the same time, an important problem related to this issue is that the procedural conditions, procedures, and rules related to the interrogation of persons with pseudonyms are not known in the legislation. For example, if during the interrogation, confrontation, or judicial investigation of a witness with a pseudonym, the need arises for the accused to clarify information about the witness's identity, the question remains open whether it is permissible to ask the witness questions in this regard, to request the investigator or the court to disclose information about his identity. After all, not only the objectivity and truthfulness of the witness's testimony, but also the perception of his personality should not arouse doubts in the parties. This situation requires finding a normative solution to these issues. Of course, in this matter, in accordance with the requirements of Article 380 of the Criminal Procedure Code, it is possible to obtain information about the identity of a witness from a judge, prosecutor, or investigator who conducted the case. In this case, the need for the witness's lawyer may not be felt. Nevertheless, considering the possibility of forming not only procedural but also reliable social specific relationships between a witness and their advocate, information related to the witness's personality and their individual life and psychological experiences may not be available to either the judge who resolved the case, the investigator who investigated the case, or the prosecutor who approved the indictment. It is precisely this information that can be important for the work in some cases. This theoretical problem attracted the attention of some scholars working in the field of criminal procedure law. In particular, M.Yu. Brezhneva International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 6 and N. A. Vlasova: The rules provided for in Article 56 of the Criminal Procedure Code of the Russian Federation, although the term "advocate" is used in it, do not clearly define the range of persons who cannot be interrogated as witnesses. In this case, there is no clear understanding of whether the lawyer is protected from questioning as a witness. In our view, the witness's defense should also have the right of immunity from being interrogated as a witness" 1 . If we determine the range of countries that have protected a witness's lawyer by the right of immunity, we can see that such a right is provided by the criminal procedure legislation of the CIS republics: the Russian Federation (Article 56 of the Criminal Procedure Code), Ukraine (part two of Article 65, paragraph 0 and paragraph 2 of part one of Article 66 of the Criminal Procedure Code), the Republic of Moldova (part three of Article 90, paragraph 2 of the Criminal Procedure Code), Armenia (part two of Article 86, paragraph 2 of the Criminal Procedure Code), the Republic of Kazakhstan (part two of Article 78, paragraph 3 of the Criminal Procedure Code), the Kyrgyz Republic (part four of Article 59, paragraph 4 of the Criminal Procedure Code). In the criminal procedure legislation of the Republic of Azerbaijan, the Republic of Belarus, and Georgia, there is still no participant called a witness's lawyer. The legislation of most countries that have introduced norms protecting witness lawyers from involvement in the case as witnesses guarantees that witness lawyers do not seek legal assistance and do not disclose information related to the provision of such assistance to witnesses. In particular, such an interpretation of the legal norm is found in the laws of the Republic of Moldova, Armenia, the Republic of Kazakhstan, and the Russian Federation. In the Criminal Procedure Code of Ukraine, witness immunity of a lawyer is related to his/her lawyer's confidentiality, the content of which is recognized in a separate law "On 1 Брежнова М. Ю., Власова Н. А. Участие адвоката в уголовном судопроизводстве для оказания юридической помощи сивдетелю. –М.: 2009. -С.14. International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 7 Advocacy." In Article 9 of this law, attorney-client privilege should be understood as the totality of information discovered, collected, and possessed by lawyers in the course of their activities in accordance with the procedure established by law, and actions related to their disclosure. Attorney-client privilege includes the fact that the principal (client) sought assistance from the lawyer, the issues on which the principal (client) sought assistance, the essence of the advice, counsel, and explanations received from the lawyer by the principal (client), and all matters addressed in the lawyer's conversation with the principal (client). 2 Of course, this concept has an extremely broad meaning and reflects the concept of equal rights for a defense attorney. As noted, a witness, as well as their lawyer, carries out procedural activities in criminal proceedings that are quite compact in form and broad in content. Based on the above information, as well as taking into account the issue of protecting the rights of a witness related to the safety of participants in the process in our country, it is necessary to guarantee the right of a witness's lawyer to immunity in cases related to the confidentiality of information about the witness's identity, as well as to establish certain conditions for interrogating a witness with a pseudonym. To the question of what the normative content of ensuring the right of a witness's lawyer to immunity should be, the Russian scientist E. Yu. Sapov argues that information about the witness's appeal to a lawyer for legal assistance and the fact that such assistance was provided to the witness by the lawyer should be kept secret 3 . This point of view is also supported by the aforementioned M. Yu. Brezhneva and N. A. Vlasova 4 . However, one cannot agree with these opinions. Firstly, the witness's lawyer is a direct and real participant in the criminal process. The witness's lawyer becomes a 2 Ўзбекистон Республикасининг Қонуни, 27.12.1996 йилдаги 349-I-сон. 3 Сапов Е. Ю. Адвокат как представитель свидетеля в уголовном процессе: функции и полномочия: Автореф. дисс...канд. юрид. наук СПб., Госунвирситет, 2012. –С.16. 4 Брежнова М. Ю., Власова Н. А. Участие адвоката в уголовном судопроизводстве для оказания юридической помощи сивдетелю. -С.14. International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 8 participant in criminal proceedings on the basis of an agreement concluded between the participants in this relationship: the witness and the lawyer. Therefore, the relationship between a witness and a lawyer does not fall within the scope of procedural relations. If a lawyer has officially entered into the defense of the rights and interests of a witness in a criminal case and has achieved such procedural status, then it is possible to talk about immunity. On the contrary, there are no grounds preventing a lawyer from being interrogated as a witness regarding pre-trial relations. Secondly, the witness's appeal to the lawyer for legal assistance and information about the methods and means of providing assistance are practically irrelevant for the criminal case, even if the witness's lawyer enters the criminal case in this status. In such a matter, interrogating a witness's lawyer is not a matter of professional ethics for a judge, investigator, or prosecutor. Taking these considerations into account, it is advisable to amend paragraph two of part one of Article 115 of the Criminal Procedure Code as follows: "2. on circumstances that became known to them as a result of performing their duties in a criminal case - the defense counsel, as well as the representative of the victim, civil claimant, civil defendant, and in cases where the law provides for the confidentiality of personal data of a witness - the witness's lawyer." It is this procedural requirement that makes it expedient to introduce specific rules of the Criminal Procedure Code for interrogating a witness with a pseudonym. In our opinion, in this direction, it is necessary to supplement part two of Article 117 of the Criminal Procedure Code as follows: "Close relatives of the suspect, accused, defendant are not warned about liability for refusal to testify. In cases stipulated by law, a witness with a pseudonym is not obligated to disclose personal data in a court session. If it is concluded that this is necessary for the correct resolution of the case, the court (judge) in the court session, and during the preliminary International Law, Business and Political Science Journal ISSN-L 3235-9799 E-ISSN 3235-9799 IF(Impact Factor) 13.24 https://journallaw.totalh.net/ Volume: 10. Issue 11 October 2025 9 investigation, the investigator or prosecutor, ensuring the safety of a witness with a pseudonym, may allow the disclosure of personal information. At the same time, there is another aspect of the procedural and legal relations that complements and ensures the full functioning of the normative mechanism for guaranteeing witness immunity provided to the witness's lawyer and the safety of a witness with a pseudonym, which is related to the protection of a witness with a pseudonym from questions related to the disclosure of information about his identity during interrogation. A witness with a pseudonym must be protected normativeally from coercion to disclose personal information and from answering questions that point to him or her. This issue is important, first of all, for ensuring his safety, as well as his procedural rights. For this purpose, it is advisable to make the following additions to Article 102 of the Criminal Procedure Code, which regulates the rules related to the inadmissibility of asking pointing questions: "Questions with the content of directing directly or indirectly to the expected answer are considered reference questions. Asking pointing questions is prohibited. In a court session, it is prohibited to ask witnesses whose pseudonyms are indicated in the list of interrogated persons, questions indicating the disclosure of their personal data, provided that the disclosure of the personal data of a witness with a pseudonym is permitted at the request of the parties, if the court concludes that such a necessity is important for the correct resolution of the case. References used: 1. Брежнова М. Ю., Власова Н. А. Участие адвоката в уголовном судопроизводстве для оказания юридической помощи сивдетелю. –М.: 2009. -С.14. 2. Ўзбекистон Республикасининг Қонуни, 27.12.1996 йилдаги 349-I-сон.