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PUBLISHED DATE: - 30-11-2024
DOI: -
https://doi.org/10.37547/tajpslc/Volume06Issue11-14
PAGE NO.: - 95-99
JUDICIAL REVIEW AS A FUNCTION OF THE
JUDICIARY
Dilshod Aripov Urinboevich
Ph.D., Associate Professor, Adviser to Director of the Supreme school of
judges, Uzbekistan
INTRODUCTION
The introduction of the institute of judicial review
in the Republic of Uzbekistan is one of the main
directions of judicial and legal reforms. In the
doctrine of law, judicial review is now considered
as one of the functions of the judiciary, which is
recognized not only as a procedural guarantee of
the rights and freedoms of citizens, but also as a
means of establishing the rule of law in a society.
Therefore, nowadays, the perception that the
judiciary should administer only fair trial has
changed, leading to the need for judicial review in
order to achieve full justice. This, in turn, serves to
ensure the rule of law in practice by exerting its
influence on ensuring the supremacy of law in all
spheres of public life. As a result, this promotes the
system in which state bodies, their officials and
citizens are obliged to comply with the law; where
violations of the law are prevented or eliminated;
when citizens are protected by courts both during
court proceedings and in the post-trial stages.
Different opinions are put forward on the
difference between the concepts of “review” and
“control” among scientists, taking into account the
subordination of the object of control to the subject
of control as the main criterion. In particular, H.
Odilkariev, B. Kasimov, E. Hodzhiev and T.
Ho
dzhiev explain the concept of review “as a type
of management activity carried out by specially
authorized state bodies in order to ensure the rule
of law in the activities of objects that are not
subordinated to them” [1]D. Mirazov, on the other
hand, is
of the opinion that the concept of “judicial
control” is more rational to be used in order to
define not the process when the courts on criminal
cases take control over actions and decisions of the
investigative bodies in pre-trial period, but the
process of oversight over the legality of those
actions and decisions [2].
RESEARCH ARTICLE
Open Access
Abstract
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According to the Uzbek dictionary, the word
“control” is derived from the word “controle
-contre
role”, which means to check, to supervise, while the
word “review” is explained as to manage,
to
constantly monitor actions of some parties, to
check [3].
According to the Uzbek legal encyclopedia,
“review” is one of the forms of activity of state
bodies aimed at ensuring the rule of law [4].
In our opinion, in both cases, control and review
are aimed at the same goal, and it is not expedient
to divide it into types according to their objects. In
addition, since the word “control” is not derived
from the Uzbek language, it is not appropriate to
include it in legal terminology only on a formal
basis. Therefore, instead of subordinating the
objects of review in order to define the concept, it
is more rational to pay attention into the forms and
powers of control conferred on it by the law in
order to specify general and special types of
judicial review. In particular, due to the fact that the
procedural mechanism of judicial review of
preliminary investigative actions and the review of
decisions of lower courts by a higher court is
specified in the law, it is rational to classify them
collectively as a special judicial review, whereas,
the supervision over the execution of decisions of
the Plenum of the Supreme Court by the courts,
supervision over the execution of other court
orders, supervision by regional courts over
activities of inter-district, district courts can be
generalized as a general judicial review.
From the point of view of the division of judicial
review into general and special types, its forms can
vary from the execution of a fair trial to application
of administrative mechanisms. In particular,
general judicial review means the control of higher
courts over the activities of subordinate courts not
related to the administration of justice
(institutional review), and special judicial review
means control over certain activities in accordance
with the procedure established by law (procedural
rules). This can be summarized as both judicial
review and execution of a fair trial are performed
in administrative forms. Thus, while the general
court review takes the form of administrative
measures only within the powers established by
the substantial law, the special judicial review is
exercised in the manner prescribed by the
procedural law.
This is supported by L. Savyuk and N. Kolokolov,
who confirmed that the judiciary functions take the
form not only of a fair trial, but also of the
constitutional review over the legality of normative
documents; judicial review over the legality and
validity of decisions, as well as, action of the bodies
carrying out operational search, inquiry and
preliminary
investigations;
guarantee
of
enforcement of judicial decisions; interpretation of
laws based on judicial practice; formation of
judicial corpus; assistance to judicial society;
overview over the legality of decisions of local
representative and executive bodies [5].
Thus, judicial review differs from administration of
a fair trial in the following ways:
judicial review is performed not always in a
procedural form;
fair trial is one of the forms of judicial review;
while fair trial is administered on the basis of
application and complaint of the parties, judicial
review is initiated by the competent courts;
judicial review shall be exercised on the basis of the
rules of substantive law, while fair trial shall be
exercised on the basis of the rules of procedural
law.
The legal basis of judicial review is provided by
substantive and procedural laws, through which
the courts may protect the rights and freedoms of
citizens during the process of administration of
justice and any subsequent stages. In particular, the
administrative courts should consider the
obligations of administrative bodies and their
officials to ensure the rights and freedoms of
citizens by considering complaints about illegal
actions (inaction) and decisions of officials.
It should be noted that the judicial review over the
legality of decisions and actions (inactions) of state
bodies and public organizations deserves
particular attention, as, unlike other supervisory
bodies, courts are independent and impartial, and
do not serve for the interest of other parties.
According to M. Umarova, judicial review is a
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specific form of administration of justice and can
never be considered as a separate function of the
judiciary. Since the essence of events are revealed
by the particular features of it, those of judicial
review are: independent action of the court in the
administration
of
justice;
execution
by
independent
judicial
bodies
(judges);
implementation in a certain prescribed procedural
form; fulfillment of two main tasks by judicial
review: protection of the rights and interests of
legal entities and individuals, and taking measures
to ensure the rule of law in decision-making by the
authorities [6].
In our opinion, this view is also controversial,
because the judicial review is a broader concept if
compared to the concept of a fair trial. It comprises
overall oversight over execution of a fair trial and
general review performed by administrative
mechanisms. As evidence, Articles 13, 26, 30, 34,
and 74 of the Law “On Courts” provide for
institutional review by the courts, and Articles 24-
26 provide for special review the administration of
a fair trial [7].
Simultaneously, it is important to focus on the
powers of the Constitutional Court to exercise
review over the legislation. In accordance with the
Law "On the Constitutional Court of the Republic of
Uzbekistan", Constitutional Court exercises special
control over non-negative impact of normative
legal acts on the constitutional rights and freedoms
of citizens by determining the legality and
constitutionality of the laws of the Republic of
Uzbekistan and resolutions of the chambers of the
Oliy Majlis of the Republic of Uzbekistan, decrees,
resolutions and orders of the President of the
Republic of Uzbekistan, decisions of the
government, local state authorities, interstate
contractual and other obligations of the Republic of
Uzbekistan.
Thus, judicial review performs other functions as
well, such as: checking the compliance of the
activities of state bodies and their officials with the
law and the tasks assigned to them; protection of
the constitutional rights and freedoms of citizens
by identifying and eliminating violations and
taking measures against the perpetrators;
maintenance of checks and balances between state
powers, along with insurance of the rule of law and
justice in a society.
Taking into account all abovementioned, judicial
review is a form of exercising judicial power, aimed
at protecting the constitutional rights and
freedoms of citizens and legal entities in
accordance with the law in pre-trial, trial and post-
trial stages of hearings, along with restoration of
violated rights and insurance of the legality of the
activities of public authorities.
According to the objects of judicial review, it can be
divided into internal and external types. Internal
judicial review means the review of the legality of
decisions of civil, criminal, administrative and
economic courts by higher courts, and external
judicial review refers to the review of the legality of
decisions of other bodies of courts and the actions
of their officials. This results in expansion of the
powers of judiciary in the field of modern law,
making it a separate div not only for the
administration of justice, but also for judicial
review.
In our opinion, depending on the purpose of
implementation, general judicial review can be
performed in the form of institutional review,
while, special one is exercised by way of
constitutional, criminal, administrative, civil and
economic judicial activity. Here, general review has
preventive role, while, special review has role of
restoration of violated rights and insurance of
compliance with the law.
The content of judicial control is comprised of
following activities: monitoring the activities of
facilities within its competence, which are
elements of state control; obtaining and analyzing
the accuracy of information about the performance
of activities by state bodies; identifying causes and
conditions of violations of law; taking measures to
prevent negative consequences, damage, accidents,
inappropriate actions and expenses by state
bodies; keeping records of the offenses committed,
determining their causes and circumstances;
identifying the wrongdoers bringing them before
justice.
The content of judicial control consists of the
following components:
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a) normative-legal sources on which the formation
and implementation of judicial review is based.
The legal basis for judicial review can be divided
into two groups: the first is general legislation (the
Constitution, the Law on Courts, etc.), and the
second is the legislation (procedural codes, Laws of
the Republic of Uzbekistan “On the Constitutional
Court of the Republic of Uzbekistan”, “On
Bankruptcy”, “On Administrative Procedures”, etc.)
that directly regulates certain areas of judicial
review;
b) legal basis on which the subject exercising
judicial review and their powers are established.
Judicial review is exercised only by the chairmen of
courts, judges and judicial staff, and their powers
are enshrined in substantive and procedural law;
c) legal means, methods and forms implemented in
the process of exercising judicial review.
It is the normative nature of legal instruments that
undermine the legitimacy of judicial review. It
includes legal norms providing for the
administration of justice, the review of court
decisions, the review and analysis of the activities
of the courts, and the application of legal sanctions;
d) organizational and legal basis for the
implementation of judicial review and its effective
functioning. They include measures, plans,
roadmaps, instructions, guidelines for the correct
and effective organization of court proceedings and
administrative control.
Judicial review is based not only on legal but also
on ethical principles. In particular, this is reflected
in the observance of the rules of ethics and internal
rules of the courts by judges. For example, in
accordance with Article 19 of the Code of ethical
conduct of judges of the Republic of Uzbekistan, the
Judicial Inspectorate and the relevant judicial
qualification boards shall monitor the observance
of the provisions of this Code. The Judicial
Inspectorate shall submit proposals to the
Supreme judicial council to take appropriate
measures against a judge, who has violated the
provisions of this Code.
In addition, judicial review is not limited with
review of only legal document, but also the legality
of other documents that, normally, do not have
such a nature. In particular, criminal courts review
the legality of decisions of inquiry officers,
investigators, prosecutors, administrative courts,
government officials, and civil and economic courts
of all legal entities except government agencies.
Thus, based on the goals and objectives of judicial
review, it can be concluded that it performs such
functions as law enforcement, regulation,
organizational support, as well as education.
When talking about the specifics of judicial review,
it is necessary to focus on the ways how it is
performed. There are several ways of judicial
review, depending on the purpose, subject, scope of
the supervisory function, the effective and
complete resolution of the issue:
1) preliminary (permissive) review (consideration
of petitions for the use of the Habeas Corps,
allowing the inquiry officers and investigators to
conduct procedural and expeditious actions
restricting the constitutional rights and freedoms
of citizens).
2) control over the judicial process (identification
of violations identified during the trial, making
private rulings on the results).
3) judicial review over the process of consideration
and resolution of appeals against decisions or
actions (inactions) of state bodies and their
officials affecting the constitutional rights and
freedoms of citizens.
From the point of view of subjects empowered with
judicial review functions, it is solely judiciary,
which, can be divided into the Constitutional Court,
courts of general jurisdiction and administrative
courts. Following this, the courts exercising judicial
review can be divided into republican
(Constitutional Court, Supreme Court) and lower
(regional, district) courts, depending on the
jurisdiction of the case. From this point of view, M.
Umarova distinguishes between the types of
judicial review: constitutional judicial review;
review of pre-trial process of criminal proceedings;
general and arbitration courts` review over civil,
administrative and arbitration proceedings [8].
From the point of view of the objects of judicial
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review, these can be divided into: control exercised
by the courts of higher instance over the legality of
decisions of the courts of lower instances; control
over the activities of inquiry and preliminary
investigation bodies; oversight over the execution
of
judicial decisions; control
over the
constitutionality of normative legal acts adopted by
public authorities; supervision over the legality of
the activities of executive bodies; institutional
review of legality of the courts` activities.
According to the above, the following conclusions
can be made:
(a) The independence of judiciary is ensured not
only by the process of administration of a fair trial
by judiciary, but also by the exercise of a special
review functions, which demonstrate distinct
power of judiciary in the administration of justice
in a society. This is because the effectiveness of the
judiciary depends not on the volume of cases
decided by them, but on the enforceability of those
decisions; the observance of human rights and
freedoms, as well as the insurance of the rule of law
by other branches of state power. Achieving this
goal without judicial review is an impossible task.
Therefore, the need for judicial review is social in
nature, and its necessity is determined by: a)
ensuring the independence of judiciary through
self-control of the courts; (b) ensuring that the
constitutional rights and freedoms of citizens and
legal entities are protected by impartial courts; c)
guaranteeing the rule of law and justice in a society;
(d) maintaining checks and balances between
authorities; e) coercion of citizens to obey the law
and to respect the rights and freedoms of each
other.
b) The main purpose of judicial review is to prevent
violations of rights and freedoms of citizens and
legal entities, to restore the violated rights, to
ensure the right of every person to a fair trial, and
to uphold the rule of law in a society.
c) In order to ensure the effectiveness of judicial
review, it is necessary to improve the existing
legislation on order to eliminate inconsistencies
and gaps. In particular, it is necessary to
development the concept of "judicial review",
followed by working on the legislation governing
this activity, by taking into account the specific
characteristics of the subject and objects in the
process of its implementation, and forming the
single legal framework for the implementation of
judicial review.
d) Based on the experience of foreign states, it is
recommended to extend the power of
Constitutional Court of reviewing the legality and
constitutionality of not only adopted normative
and legal acts, but also those, which are expected to
be adopted.
REFERENCES
1.
Odilqoriev H.T., Qosimov B.E , Administrative
law. Textbook. (2010) p. 448. Khojiev E.,
Khojiev T., Administrative law. Textbook.
(2008) p.317-318.
2.
Mirazov D.M. Control and supervision in the
preliminary
investigation:
Historical,
organizational and procedural aspects:
Monograph. (Academy of the Ministry of
Internal Affairs of the Republic of Uzbekistan,
2015) p. 72.
3.
Annotated dictionary of the Uzbek language:
"National encyclopedia of Uzbekistan" (State
Scientific Publishing House, 2006).
4.
Legal Encyclopedia of Uzbekistan. (Adolat,
2010) p. 328.
5.
Savyuk L.K. Law enforcement agencies, (2007)
p. 86-88; Kolokolov N.A. Judicial control at the
stage of preliminary investigation (2004) p. 16-
27.
6.
Umarova M.A. The mechanism of judicial
control:
a
general
theoretical
study.
Dissertation at KYHN. (2018).
7.
https://lex.uz/docs/68532
8.
Umarova M.A. Mexanizm sudebnogo kontrolya:
obshchetereticheskoe
issedovanie.
Dissertatsiya na KYUN (2018).
