CC BY
26Hill
Bekhzod Muminov,
Candidate of Legal Sciences, associate Professor of the Criminal Law department Supreme School of Judges e-mail: gipart1133@mail.ru
PROSPECTS FOR EXPANDING THE LIMITS OF JUDICIAL CONTROL OVER
PRE-TRIAL PROCEEDINGS
Abstract: This article critically examines the legal status of the right to judicial protection of the individual over prejudicial inquiry. The author offers an extended mechanism for administering the right, based upon an analysis of international legal provisions, which will guarantee the right of access to justice, as well as the right to a fair trial.
Judicial review is the mechanism, which allows people to challenge unlawful actions by public authorities before an independent and impartial tribunal. However, in implementing any policy-based reforms and in interpreting and applying each of these new changes to judicial review practice and procedure, its important constitutional function must be the key criterion. As the courts have explained, "there is no principle more basic to our system of law than the maintenance of the rule of law itself and the constitutional protection afforded by judicial review". There is a substantial body of literature concerning judicial review; however, this is an entirely new issue in criminal proceeding. This article thoroughly examines the role of judicial control, including the analysis of opposite proposals to reform judicial control in the constitutional context. It seeks to generate - and contribute to - a wider debate about the relevance of judicial review in protecting individual rights and freedoms.
Key words: judicial review, prejudicial inquiry, improvement, right of access to justice, foreign experience.
Бех,зод Муминов,
Узбекистан Республикаси Судьялар олий кенгаши хузуридаги Судьялар олий мактаби доценти, юридик фанлари доктори, е-mail: gipart1133@mail.ru
ИШНИ СУДГА ЦАДАР ЮРИТИШ УСТИДАН СУД НАЗОРАТИНИ КЕНГАЙТИРИШ ИСТИЦБОЛЛАРИ
Аннотация: мацолада ишни судга цадар юритиш жараёнида суд %имоясида булиш %уцуцини амалга ошириш %олати танцидий та%лил цилинган. Муаллиф халцаро %уцуц нормалари асосида одил судлов ва адолатли судга булган %уцуцларни амалга ошириш механизмларини кенгайтиришни таклиф цилган.
Review of law sciences
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Суд назорати фуцароларга давлат органларининг цонунга хилоф царакатларини мустацил ва холис суд томонидан текшириш имконини берувчи механизмдир. Бироц суд назорати амалиёти ва жараёнига мазкур узгаришларни татбиц цилишда унинг конституциявий функцияси асосий мезон булиши даркор. Суд мазкур масалада бизнинг тизим учун цонун устуворлигининг узи ва суд назорати орцали таъминланадиган конституциявий цимоядан муцимроц принцип йуц деб тушинтириш беради.
Суд назоратига багишланган адабиётлар етарли булсада, бу жиноят процесси учун муцим янгиликдир. Мазкур мацолада суд назоратининг ацамиятини таъкидлаш билан бирга суд назоратини такомилаштириш буйича мавжуд таклифлардаги зиддиятларни муцокама цилмасдан, конституциявий моциятига эътибор царатилган. Ушбу мацола суд назоратининг инсон цуцуц ва эркинликларини цимоя цилишдаги ацамияти юзасидан мунозара ва гояларни янада кенгайтиришга хизмат цилади.
Шу билан бирга, мацолада суд назоратини жорий цилиш жараёнида юзага келган умумий муаммолар тацлил цилинган.
Калит сузлар: суд назорати, ишни судга цадар юритиш, такомиллаштириш, одил судловга эришиш цуцуци, хорижий тажриба.
Бехзод Муминов,
доцент кафедры уголовного права Высшей школы судей, кандидат юридических наук е-шаП: gipart1133@mail.ru
ПЕРСПЕКТИВЫ РАСШИРЕНИЯ ПРЕДЕЛОВ СУДЕБНОГО КОНТРОЛЯ НАД ДОСУДЕБНЫМ ПРОИЗВОДСТВОМ
Аннотация: в данной статье критически рассматривается текущее состояние на судебную защиту личности во время досудебного расследования. Автор предлагает расширенный механизм осуществления этого права, основанный на анализе международно-правовых отношений, которое будет гарантировать право на доступ к правосудию, а также право на справедливое судебное разбирательство.
Пересмотр судебного решения - механизм, который позволяет гражданам оспаривать незаконные действия государственных органов в независимом и беспристрастном суде. Однако при осуществлении любых реформ, а также при толковании и применении каждого из этих новых изменений в практике и процедуре судебного контроля, его важная конституционная функция должна является ключевым критерием. Как пояснили суды, "Нет более фундаментального принципа для нашей системы, чем верховенства права и конституционной защиты, которые осуществляется путем судебного контроля". Существует значительный объем литературы, касающийся пересмотра судебного решения. Вместе с тем, это достаточно новое явление для уголовного процесса. В данной статье обстоятельно изучена роль судебного контроля, в том числе, и на основе анализа противоположных предложений по реформированию судебного контроля в конституционном контексте. Это направлено на развитие данного
института в уголовно-процессуальной науке, что в свою очередь, внесет существенный вклад в научную дискуссию об актуальности судебного контроля как важного средства защиты прав и свобод личности.
Ключевые слова: судебная защита, пересмотр судебного решения, доступ к правосудию, судебный контроль, уголовный процесс, незаконные действия.
INTRODUCTION
The Soviet Union, of course, knew no rule of law as we conceive it today: "As an authoritarian state with a largely state-owned and administered economy, the USSR treated law as simply one of a number of instruments of rule, and not even as the dominant one. Both political decisions and administrative regulations took precedence over law, and even the application of regulations often took an ad hoc form and was strongly influenced by personal relationships"[1]. This meant that although laws enshrining fundamental human rights may have been well crafted, they were either not applied at all or only selectively.
Since Uzbekistan's independence in 1991, the country has faced the challenge of reforming its criminal justice system inherited from the Soviet Union. Uzbekistan was significantly influenced by the former Soviet judicial system in the creation of a new judicial system. The main weaknesses of the old system were the lack of independence of the judiciary, concentration of powers with the Prosecutor and failure to respect the rights of defendants and detainees [2]. In response, several legal changes have been made to further the establishment of an independent judicial system in order to adhere to international standards. Despite these efforts, elements of the old Soviet judicial system have persisted. The road map for comprehensive reforms in many areas, especially the judiciary, was launched in 2017. In this context, important steps have been taken to establish an independent, functional and internationally compatible judicial system, and these efforts continue today.
1. The quest for a new judicial system and comprehensive judicial reform
The Judiciary is one of the areas in which Uzbekistan needs to conduct substantial reforms to uphold the rule of law and ensure integrity in its legal system, as well as to support anticorruption reforms in other spheres. First of all, international human rights instruments acknowledge the fundamental right of every person to access to due process of law, meaning a fair and public hearing by a competent, independent and impartial court established by law. Enforcement of such rights rely upon the capable administration of justice. A core element of the right to fair trial is the establishment of independent and impartial courts. Secondly, procedural equality of parties (equality of arms) is also an essential element of a fair trial. A judicial system under the influence of corruption, or a lack of access to the judicial system, will result in unjust consequences in terms of judicial decisions.
From this perspective, a lack of these elements within a judicial system produces unfair and unpredictable decision making, due to courts not giving priority to the rule of law [3]. It should be noted that a few legal uncertainties and contradictions should be eliminated during the preliminary investigation phase. As a simplified example, despite the Code on Criminal Procedure [4] declaring that participants in criminal proceedings and other persons, as well as representatives of the enterprises, institutions and organizations, with an interest in the proceedings of a criminal case, have a right to complainabout the procedural actions or decisions of the court, the exercise of this constitutional right to effective judicial protection as set forth in the Charter of Fundamental Rights (Article 47) remains unrealized [5].
However, the Law "On Courts" states that the court in the Republic of Uzbekistan is called upon to exercise judicial protection of the rights and freedoms of citizens proclaimed - inter alia - by "international acts on human rights, rights and interests of enterprises, institutions and organizations protected by law". To that end, the country has undertaken actions aimed at upgrading its legal and judicial systems to new democratic standards, including judicial protection of the rights and freedoms of citizens, but much remains to be done. Since 2005, a number of significant Presidential Decrees (policy papers) addressing key areas of judicial reform have been issued. More specifically in the area of Criminal Justice Reform, legal reforms include the Decree "On Abolishment of Death Penalty" (2005), implemented in the beginning of 2008, which provides for full abolition of the death penalty as a criminal punishment, and its replacement with life-long or long-term sentencing [6]. The Decree "On Transfer of Right to Issue Arrest Warrants to Courts", in force from January 2008, provides for full transfer to courts of warrants to arrest people either suspected or charged with committing crimes. The Decree "On Measures for the further Reforms in Advocacy" (2008) supported the provision of free, independent legal advice to all detainees.
Furthermore, Uzbekistan has taken serious steps in recent years to ensure the smooth running of business activities, to create favorable conditions for doing business, and to attract foreign investment. According to the decree on "Measures on further reforming of the judicial system, strengthening of the guarantees of reliable protection of the rights and freedoms of citizens", the main criteria of state policy in the judicial sphere are to ensure independence of the judiciary and to strengthen the reliability of protections of the rights and freedoms of citizens. In order to develop a business friendly legal framework, reforms should focus on two fundamental processes. The first process begins with the review of legal rules; specifically the constitution, legislation, and administrative decrees and orders. The second is the enforcement of these rules consistently and without regard to context. Without effective implementation of rules, law is not likely to be sound and beneficial [7]. In this sense, it is recommended that Uzbekistan not only review existing laws but also focus on the applicability, compatibility and effectiveness of those laws. Only in this way can judicial reform serve its purpose and would gain the trust of public.
2 Rule of Law and Judicial Review
"Ensuring the rule of law and further reform of the judicial and legal system of the Republic of Uzbekistan" is the second of five strategic priorities under the Action Strategy for Five Priority Areas of Development of the Republic of Uzbekistan in 2017-2021 (State Strategy) [8]. It is commonly recognized that the rule of law comprises the principal mechanism for restricting the power of state [9]. The effectiveness of the rule of law can be seen not only through the strength of the judiciary but also in an array of non-judicial state agencies; for instance, in the police force and prison system, and in the improvement of criminal law and penal codes [10]. According to the World Bank, the rule of law consists of three pillars: rules, process and institutions [11]. The first pillar includes the objective rules that not only are known in advance but also are actually enforced and are subject to modification or termination pursuant only to previously known practices. The second pillar consists of processes to ensure that the rules are not arbitrary, in other words that they are adopted in response to genuine needs of the people, applied and enforced to serve these needs. The third pillar is composed of well-functioning institutions that adhere to and apply regulations without arbitrariness.
Expansion of judicial control over the inquiry and preliminary investigation within the framework of further expansion of the institution of "Habeas Corpus" based on best practices of
foreign countries must become an effective means of ensuring protection of citizens' rights and freedoms from criminal encroachments, as well as avoiding violations of their legitimate interests.
The utmost priority in modernizing our criminal justice system should be enduring greater independence of the judiciary and strengthening judicial control, in particular at the pre-trial stage. Judicial power in the field of public law has grown significantly since the 1990s. Judicial reforms further increased judicial power by engaging courts in rights-based adjudication: determining if the legislation and the acts of public authorities infringe upon the rights stipulated in the Constitution and international frameworks upon human rights and fundamental freedoms. Judicial review is a process by which individuals and other parties can challenge the lawfulness of decisions or actions of the public authorities over prejudicial inquiry.
3. Recommendation
According to current established procedure, complaints against the actions and rulings of the investigator shall be filed with the head of the investigative unit and procurator overseeing the lawfulness of the investigative proceeding. However, such procedure contradicts the general rule which states that it is necessary to clearly divide powers between actors in criminal proceedings and ensure that the same body is not allowed to review complaints about its own alleged violations.
One may challenge a decision or action on three main grounds:
Illegality: for example, when a decision was not taken in accordance with the law that regulates it, or goes beyond the powers of the body;
Irrationality: for example, when the decision did not take account of all relevant factors, or when the decision is not reasonable by any means; and
Procedural unfairness: for example, a failure to consult properly or to act in accordance with the procedural rules.
However, definite protections should be provided against spurious claims: only those with essential interest are able to challenge a decision, and they must first obtain permission for their case to be heard, so that scope of judicial review should be carefully delineated.
Such challenges are often described as a remedy of last resort: the courts will normally expect parties to have tried all other avenues where they are available. Significant contributions to the growth of judicial power have come from The Universal Declaration of Human Rights, which declares that everyone has the right to an effective remedy by competent national tribunals for acts violating the fundamental rights granted him or her by the Constitution or by law.
The significance of judicial review to the rule of law is acknowledged by the
international judiciary, which describes judicial review as "the rule of law in action", "a critical check to ensure lawful public administration", "a crucial means of holding Government to account" and "a critical check on the power of the State" [12]. The importance of judicial review is in maintaining the rule of law, including creation of a balance between the two sides in judicial processes. Successful democratic systems can only be built on a basis of the rule of law and public trust. Without these foundations, disorder would ensue, which could threaten the entire system.
There is, however, another relevant principle, which must exist in a democratic society. That is the rule of law itself. The principles of judicial review give effect to the rule of law. They ensure that administrative decisions will be adopted rationally, and in accordance with a fair procedure and within the powers conferred by Parliament.The judge is best placed to be an independent and impartial overseer of adherence to human rights and freedoms in the pre-trial phase of criminal proceedings [13]. Thus, the judge must have the authority to issue arrest warrants, to conduct operational search actions, to execute wiretapping, search and other investigative actions that may infringe human rights. Moreover, the judge considering the arrest warrant should have the right to
decide first on the validity of the probable cause of apprehension and the lawfulness of detention, as well as to release the detained person if the detention is found to be unlawful. This right must be granted to the court, as required by Article 9 of the ICCPR and the international judicial practice of its interpretation and application.
The judge should have the power to review the legality of an arrest and detention, and to order the suspect's release if the arrest or detention was unlawful. The decision to apply preventive measures should be reasoned and should not be motivated solely by the severity of the crime. In order to justify the necessity to use preventive measures, substantive and procedural grounds have to be demonstrated by the prosecutor or the investigator. The substantive ground to be demonstrated is a reasonable suspicion that the suspect committed the criminal offence in question, while the procedural ground includes a serious risk for the suspect to abscond, hindrance to the course of justice, or commission of a new crime if no preventive measure is applied.
Thus, the principle of presumption of innocence should be borne in mind. Moreover, systematic and regular review on the application of preventive measures must be put in place. The extension of the measure cannot be automatic, and new evidence has to be presented to justify the continuing need for the imposed measure. Legislation must foresee the possibility for the judge to order a measure different from the one requested by the prosecutor or investigator. In addition, the use of non-custodial measures is particularly important where vulnerable groups are concerned.
The application of preventive measures should be decided at an oral hearing in the presence of the suspect represented by a defense lawyer. Conducting a court hearing is essential for the process to be adversarial, as it provides the suspect with an opportunity to challenge the petition of the prosecutor or investigator on the court and present his or her arguments, while being assisted by a lawyer. A hearing in front of a judicial body also helps in uncovering and remedying possible abuses related to deprivation of liberty.
The judge in criminal proceedings should act as a guarantor for the right to a fair trial. The oversight functions of such a judge should include taking actions aimed at protecting human rights (particularly in cases where detention has been ordered), authorizing investigative measures which limit human rights of defendants, such as searches or covert investigation measures, and reviewing complaints and appeals by the parties during the pre-trial phase. Allowing the judge, a presumably independent officer of an impartial body, to have these functions could help ensure equality of arms and guarantee adversarial proceedings.
Enacting primary legislation, regulations, internal rules and codes of conduct that meet international standards will eventually increase awareness of the Uzbek public regarding their rights. Thus, the analysis allows drawing the following conclusions:
1. Preventive measures against a suspect should be authorized solely by a judge who will not be presiding over the trial.
2. Material and procedural grounds must be proved by the prosecutor or investigator in their application for preventive measures. In particular, the severity of the crime cannot be the sole ground for imposing a preventive measure.
3. Non-custodial preventive measures should be considered first before ordering pre-trial detention. The latter should be ordered only when non-custodial measures are found unsuitable. Systematic and regular review of the applicability of a preventative measure must be ensured, as there should be no automatic renewal of such measures.
4. Scope of application of preventive measures such as bail, personal recognizance, and electronic measures of control should be expanded.
5. Defendants, assisted by a defense lawyer, should benefit from a court hearing where he or she can present arguments against the prosecutor or investigator's request for deprivation of liberty or other preventive measures to the judge.
Judges, prosecutors and defense lawyers should have targeted training to prepare for the hearing on preventive measures.
Conclusion
Comprehensive reforms in many areas, especially the judicial system, have been promising in the past few years. Especially in the context of these reforms, the quest for human rights and an independent judicial system should be stated. Reform of the judiciary can be seen as a particularly important priority to overcome impunity for past human right abuses. Additionally, a sound judiciary can better defend human rights, ensure access to justice, limit government power, and improve the environment for economic growth. In this regard, it should be appreciated that the modernization of the penal code, the simplification of criminal and administrative procedure, and the creation of modern training facilities for judges will all contribute to accomplishing these reforms. There has been much progress in the case of rule of law reform. In light of this reform, improvements have ranged from increased transparency and predictability of judicial institutions to enforceability of private contracts. Rule of law reform sends a message that Uzbekistan has made a commitment to modernization, and is ready to compete in the international market.
Despite that, there has been some progress in the justice system, the lack of access to justice, judicial inefficiencies, and inconsistency in the application of laws and codes remains problematic. It is important to identify Uzbekistan as "ensuring the rule of law and further reforming the judicial system" as one of the five important issues to be addressed between 2017and 2021. In this regard, it is essential that we commit to strengthening the independence of the judiciary and the guarantees of reliable protection of citizens' rights and freedoms, enhancing the effectiveness of administrative, criminal, civil and economic legislation, developing a system to combat crime, and improving the quality of legal services. In the years to come, it will be necessary to enact reforms to strengthen judicial independence, as well as to take measures to reflect these laws in practice.
References
1. Solomon. P and Foglesong. T courts and transition in Russia: the challenge of judicial reform, 4 (Westview Press, Boulder, Co. 2000); International Crisis Group (2008) Kyrgyzstan: The Challenge of juridical reform, Crisis Group Asia Report N.150 <https://www.refworld.org/pdfid/47fdde152.pdf> (accessed: March 13, 2020); Blockmans.S, Hriptievschi.N, Panasiuk.V and Zguladze.E (2018) Integrity on Trial: Judicial reform in Georgia, Ukraine and Moldova, CEPS Working Document No 2018/04; Botero. J, Porta.J, Lopez-de-Silanes. F, Shleifer, A and Volokh, A (2003) The World Bank Research Observer, Vol. 18, No. 1, pp. 61-88.
2. See in more detail: Starosolsky, G (1950) Basic principles of Soviet Criminal Law, North Carolina Law Review, 28(4), 360-374.
3. UNODCCP (2001) Strengthening judicial integrity against corruption, Global Program Against Corruption, p.3,
<https://www.unodc.org/documents/nigeria/publications/Otherpublications/Strengthening_ Judicial_Integrity_Against_Corruption_2001.pdf> (accessed: March 2, 2020)
4. Law of the Republic of Uzbekistan, No.262 of 22 September 1994, "Criminal Procedure Code of the Republic of Uzbekistan", Journal of Olii Majlis of the Republic of Uzbekistan, 1995, No.12, Art.269.
5. Official Journal UE C 202 from 2016, p.389.
6. The Decree of the President of the Republic Uzbekistan No.UP-3641 "On abolishment of death penalty in the Republic of Uzbekistan" from August 1, 2005.
7. Shihata, i (1996) The role of law in business development, Fordham International Law Journal 20(5), 1583.
8. See Decree of the President of the Republic of Uzbekistan No. UP-4947 "Action Strategy for Five Priority Areas of Development of the Republic of Uzbekistan in 2017-2021", <http://lex.uz/pages/getpage.aspx?lact_id=3107042> (in Russian).
9. Tamanaha, B (2012) The history and elements of the rule of law, Singapore Journal of Legal Studies, 232-247; Peter van Lochem (2017) Legislation against the rule of law - an introduction, The Theory and Practice of Legislation, 5:2, 95-100; May, C. (2017). Market Exchange and the Rule of Law: Confidence in Predictability. Hague Journal on the Rule of Law; Stolper, A and Walker, M (2007) Rule of law, economic growth and prosperity, Americas Society and Counsil of the Americas Working Group.
10. Santisco, C (2003) The elusive quest for the rule of law: Promoting juridical reform in Latin America, Brazilian Journal of Political Economy 23(3) p.121.
11. Shihata, I (1995) Legal framework for development: The World Bank's role in legal and juridical reform, in World Bank, Juridical Reform in Latin America and Caribbean,
12. Knafler, S, Denial of justice, the Garden Court Chambers/LAG Public Law Conference <https://www.lag.org.uk/article/202501/denial-of-justice> (accessed: March 4, 2020)
13. United Nations, Office of the High Commissioner for Human Rights, "Basic Principles on the Independence of the Judiciary," GA Resolution 40/32
13-16.
