THE USA JOURNALS
THE AMERICAN JOURNAL OF POLITICAL SCIENCE LAW AND CRIMINOLOGY (ISSN- 2693-0803)
VOLUME 06 ISSUE12
47
https://www.theamericanjournals.com/index.php/tajpslc
PUBLISHED DATE: - 25-12-2024
DOI: -
https://doi.org/10.37547/tajpslc/Volume06Issue12-09
PAGE NO.: - 47-53
LEGAL STATUS OF THE PROSECUTOR’S
OFFICE AS A STATE BODY
Makhmudov Alisher Abdusalimovich
Independent researcher of the Law Enforcement Academy of the Republic
of Uzbekistan
INTRODUCTION
On September 7, 1990, the “Guidelines on the Role
of Prosecutors” were adopted at the Eighth United
Nations Congress on the Prevention of Crime and
the Treatment of Offenders. These guidelines
provide a detailed explanation of the legal status
and primary functions of prosecutorial authorities
in states. They also offer insight into the conceptual
framework of how the prosecutorial system should
be structured and its place within the state
apparatus, making it a highly valuable document in
this field.
According to the guidelines and scholarly
literature, prosecutorial authorities must remain
separate from the judiciary, support the institution
of prosecution, investigate criminal cases in
accordance with relevant legislation, oversee such
investigations, and perform other functions that
represent state interests as prescribed by law.
These functions necessitate the prosecutorial
authorities’ operation as independent entities with
corresponding legal status.
Prosecutorial authorities protect public interests
—
namely, the interests of the state and society.
Therefore, the status of prosecutorial authorities
should enable them to defend these interests
through any lawful means and before any instance.
This
underscores
the
requirement
for
prosecutorial authorities to have a legal status that
ensures their independence from the judiciary and
executive branches while allowing them to
safeguard public interests in administrative and
enforcement proceedings. This independent legal
status enables the prosecutorial authorities to act
as autonomous entities that can effectively protect
public interests at all levels of the state system.
Based on the legal status of prosecutorial
authorities and their place within the state
apparatus, we have divided them into three
RESEARCH ARTICLE
Open Access
Abstract
THE USA JOURNALS
THE AMERICAN JOURNAL OF APPLIED SCIENCES (ISSN
–
2689-0992)
VOLUME 06 ISSUE06
48
https://www.theamericanjournals.com/index.php/tajpslc
conditional groups, guided by theoretical
perspectives and legislative practices: (1) judicial
authorities, (2) executive authorities, and (3)
independent oversight bodies with broader
powers.
1. Judicial Authorities.
In many legal systems, prosecutorial authorities
are considered part of the judicial branch. More
specifically, nearly all legal systems view the
participation of prosecutorial authorities in judicial
processes as fundamental and place significant
emphasis on this role. Historically, in Europe, the
formation of prosecutorial authorities has been
closely tied to their participation in criminal
proceedings as representatives of the state.
Similarly, in the legal systems of the United States
and England, prosecutorial authorities are
regarded as part of the criminal justice system,
operating independently from courts and law
enforcement agencies.
The concept of prosecutorial authorities as judicial
bodies is not necessarily linked to the judiciary
itself but rather to the achievement of justice and
the maintenance of the rule of law. This role
primarily involves investigating criminal cases and
defending the interests of the state and society in
court, culminating in actions aimed at ensuring
justice.
When examining the interaction between
prosecutorial systems and judicial authorities
abroad, two distinct models emerge:
1. Prosecutorial authorities are an integral part of
the judicial system and operate within the
structure of courts.
2. Prosecutorial authorities are separate
state entities that engage with the judiciary
exclusively through procedural interactions.
American
scholar
David
Sklansky
has
differentiated prosecutorial authorities from both
law enforcement agencies and courts. Unlike
courts, prosecutorial authorities do not consider
their decisions as final and are not required to
justify them to the same extent as courts. Unlike
police and other law enforcement agencies,
prosecutors do not directly combat crime on a day-
to-day basis but focus on broader legal oversight
and procedural functions.
Furthermore, the role of prosecutorial authorities
in presenting state accusations and investigating
crimes does not, in itself, determine their legal
status or place within the state apparatus. In our
view, this highlights that prosecutorial authorities,
regardless of their position, must function as
independent entities with sufficient authority to
detect, investigate, and oversee other law
enforcement activities to ensure justice. When
prosecutorial
authorities
are
viewed
as
independent entities responsible for justice, it is
essential to note their extensive powers. In the
United States, the prosecutorial system operates as
an independent div responsible for ensuring
criminal justice, with its authority recognized as
exceptionally broad in both legal literature and
judicial practice.
2. Prosecutorial Authorities as Executive Bodies
Prosecutorial authorities are also viewed as
executive bodies responsible for law enforcement,
particularly in investigating legal violations,
primarily criminal offenses. It has been noted in the
legal practices and literature of many European
countries that the activities of prosecutorial
authorities as both judicial and executive bodies
are not mutually exclusive. For example, in
Germany, prosecutorial authorities are considered
judicial bodies but operate within the executive
branch as part of the Ministry of Justice.
In countries such as Germany (and Austria and
Switzerland), France, the United States, and
England, prosecutorial authorities have evolved as
judicial bodies. Their primary role is to ensure
justice through investigating criminal cases and
presenting state accusations (public prosecutors).
However, in terms of organization and activity,
they are not part of the judicial system and operate
independently from courts. In these countries,
prosecutorial
authorities
occupy
different
positions within the state apparatus
—
being part of
the judiciary in some cases and part of the
executive branch in others.
3. Prosecutorial Authorities as Independent Bodies
When prosecutorial authorities are granted
THE USA JOURNALS
THE AMERICAN JOURNAL OF APPLIED SCIENCES (ISSN
–
2689-0992)
VOLUME 06 ISSUE06
49
https://www.theamericanjournals.com/index.php/tajpslc
broader powers
—
such as ensuring state
accusations in judicial proceedings, investigating
crimes (or supervising investigations), and
protecting public interests (state and societal
interests)
—
they are often considered independent
entities outside the framework of legislative,
executive, or judicial power. This concept is evident
in the legal status of prosecutorial authorities in
countries like Portugal, Spain, and the CIS states. In
the United States, prosecutorial authorities are also
independent entities. However, their political
dependence on state-level governance and their
primary focus on criminal justice distinguish them
from the prosecutorial systems described above.
Prosecutorial systems of this type are typically
constructed and managed as unified and
subordinate structures. Examples include the
prosecutorial authorities in Uzbekistan, Russia,
Japan, and Spain. A key characteristic shared by
these systems is their independence, combined
with their operation within a unified and
hierarchical structure.
Another significant feature is the broad oversight
powers of prosecutorial authorities, which
fundamentally alter their interactions with
executive bodies. Overseeing the legality of
executive activities, which encompasses a wide
range
of
functions,
requires
complex
organizational structures and hierarchies, as well
as specific powers and legal frameworks.
The historical evolution of prosecutorial
authorities, as outlined in the previous paragraph
of this study, demonstrates that in Uzbekistan (as
in many CIS countries), prosecutorial authorities
have historically developed as independent bodies,
establishing a distinct legal tradition. Post-
independence development of the prosecutorial
system in Uzbekistan has followed this same
trajectory, resulting in an independent system of
prosecutorial authorities that are not part of any
branch of government and whose primary function
extends beyond judicial proceedings to broader
oversight activities.
Many Uzbek legal scholars emphasize that national
prosecutorial authorities do not belong to any
branch of state power. For instance, Z. Islomov, in
his study of prosecutorial functions, argued that by
their very nature, these functions cannot place
prosecutorial authorities under either the
legislative or executive branches of government.
Similarly, M. Radjabova acknowledged the
independence of prosecutorial authorities,
considering that their oversight functions
encompass all branches of government. G. Alimov,
I. Jasimov, and U. Abdulolimov, along with other
national legal scholars and researchers, have
reached similar conclusions, affirming that
prosecutorial authorities are independent entities
that do not fall under any branch of state power.
The legislators of the Republic of Uzbekistan have
also
granted
prosecutorial
authorities
constitutional status. Specifically, Chapter XXV of
the Constitution of the Republic of Uzbekistan,
titled “Prosecutor’s Office,” defines the primary
tasks of prosecutorial authorities, as well as norms
concerning the tenure, independence, and political
neutrality of prosecutors.
The significance of granting constitutional status to
the prosecutorial authorities of Uzbekistan lies in
the fact that, through their constitutional and legal
status, they are directly tasked with ensuring
constitutional legality and protecting the rights and
freedoms of individuals and citizens as supreme
values. This status enables the prosecutorial
authorities to participate in implementing the
state’s legal policies and maintain a balance of
interests among individuals, society, and the state
while safeguarding this balance.
Article 1 of the Constitution of the Republic of
Uzbekistan unequivocally establishes Uzbekistan
as a sovereign, democratic, legal, social, and secular
state. The essence of a legal state can be
understood through the provisions of Article 15 of
the Constitution. Specifically, this article recognizes
the unconditional supremacy of the Constitution
and laws of the Republic of Uzbekistan. It states
that the Constitution of Uzbekistan possesses the
highest legal force throughout the country, applies
directly, and serves as the foundation of a unified
legal framework. In our view, the most significant
basis of state sovereignty is expressed in this
unified legal framework. Article 16 of the
Constitution stipulates that the laws and other
normative legal acts of Uzbekistan must be adopted
THE USA JOURNALS
THE AMERICAN JOURNAL OF APPLIED SCIENCES (ISSN
–
2689-0992)
VOLUME 06 ISSUE06
50
https://www.theamericanjournals.com/index.php/tajpslc
based on and for the execution of the Constitution
of the Republic of Uzbekistan. No law or other
normative legal act may contradict the principles
and norms of the Constitution. These constitutional
norms, in our view, form the doctrinal foundation
for the concept of constitutional legality within the
country’s legal system and serve as the legal basis
for ensuring the rule of law in Uzbekistan.
Moreover, the principles of the supremacy and
direct applicability of constitutional provisions
represent a critical criterion of constitutional
legality. As stated in Article 15 of the Constitution:
“The Constitution of the Republic of Uzbekistan has
the highest legal force throughout the country,
applies directly, and serves as the foundation of a
unified legal framework.”
Prosecutorial authorities occupy a special position
within the mechanism for ensuring constitutional
legality. One of their unique functions is to ensure
the direct and effective application of laws across
the entire territory of the country in the regulation
of social relations. Article 143 of the Constitution of
Uzbekistan explicitly assigns the responsibility for
supervising the precise and uniform execution of
laws throughout the territory of the Republic to the
Prosecutor General of Uzbekistan and subordinate
prosecutors. The constitutional status granted to
prosecutorial oversight emphasizes their central
role in ensuring constitutional legality. By their
nature
and
responsibilities,
prosecutorial
authorities emdiv the essence of constitutional
legality, ensuring that social relations throughout
the nation are governed under the principles and
norms of the Constitution.
It is important to note that in this context,
prosecutorial authorities differ from other law
enforcement and oversight institutions. According
to F. Ota-khonov, the inclusion of a specific chapter
in the Constitution dedicated to the prosecution
indicates its unique constitutional and legal status
within the state mechanism, as well as its high
social standing. This also implies that, in contrast to
other law enforcement agencies, the prosecutor’s
office is a constitutional div.
The primary purpose of granting prosecutorial
authorities constitutional status is to ensure the
rule of law in the country, strengthen legality,
protect the rights and freedoms of citizens,
safeguard the legally protected interests of society
and the state, and protect the constitutional order
of the Republic of Uzbekistan. This process
contributes to strengthening the sovereignty of the
state, building a legal state, and achieving a balance
of interests between individuals, society, and the
state.
I. Jasimov emphasizes that the placement of
prosecutorial authorities in a separate chapter of
the Constitution signifies its role as a single state
organ responsible for overseeing the precise and
uniform implementation of laws. The high level of
constitutional recognition granted to the
prosecution has paved the way for effectively
utilizing its powers and legal authority to
strengthen state sovereignty and legality.
All of these elements create reliable conditions and
foundations for the constitutionalization of the
prosecution. They also reflect how deeply
constitutional principles (constitutional values,
principles, foundations, axioms, presumptions,
definitions, etc.) have been embedded in the
functional
characteristics
of
prosecutorial
activities.
Thus, the constitutional-legal status of the
Prosecutor’s Office of the Republic of Uzbekistan is
characterized by the following key features:
1. The main duties of prosecutorial authorities, the
terms of office of prosecutors, their independence,
and political neutrality are secured by the
Constitution of the Republic of Uzbekistan (Articles
143-145) and their activities are in accordance
with constitutional norms and federal legislation.
The name of Chapter XXV, titled “Prosecution,”
reflects the constitutional status of the prosecutor’s
office.
2. To implement the principles of a legal state and
ensure the supremacy of the Constitution and laws,
the Republic of Uzbekistan guarantees that laws
are implemented accurately and uniformly across
the country. The supervision of this process is
carried out by the Prosecutor General of the
Republic of Uzbekistan and subordinate
prosecutors, as stipulated in Article 143 of the
Constitution.
THE USA JOURNALS
THE AMERICAN JOURNAL OF APPLIED SCIENCES (ISSN
–
2689-0992)
VOLUME 06 ISSUE06
51
https://www.theamericanjournals.com/index.php/tajpslc
3. As a result of constitutional reforms in the
country in 2023, the institution of appointing and
dismissing the Prosecutor General was reformed.
According to the reforms, the Prosecutor General is
appointed by the President of the Republic of
Uzbekistan after the approval of the Senate of the
Supreme Assembly (Articles 95, 109). One
individual may not hold the position of Prosecutor
General for more than two consecutive terms
(Article 144).
4. Article 98 of the Constitution of the Republic of
Uzbekistan, which addresses the right to legislative
initiative, grants the Prosecutor General the right
to initiate legislation on matters within their
authority. By exercising this right, the Prosecutor
General serves as a constitutional guarantee for the
development of the rule of law. The constitutional
rule that the Prosecutor General participates in the
sessions of the Legislative Chamber and Senate of
the Supreme Assembly ensures effective
cooperation with the parliamentary chambers.
5. The Prosecutor’s Office of the Republic of
Uzbekistan exercises its powers independently
from other state bodies, organizations, and
officials, strictly in accordance with the
Constitution and laws of the Republic of
Uzbekistan.
Prosecutors
suspend
their
membership in political parties and other public
associations pursuing political goals during their
term of office.
6. The exclusive right of the Senate of the Supreme
Assembly of the Republic of Uzbekistan to hear the
report of the Prosecutor General establishes a
constitutional basis for effective parliamentary
oversight over the prosecutor’s office, which
operates independently from other state
authorities.
The unified constitutional status
–
the essence of
the legal status of the prosecutor’s office –
encompasses, first, constitutional norms regarding
prosecutorial activities, and second, it reinforces
the powers of the prosecutor’s office in performing
the functions assigned by the Constitution of the
Republic of Uzbekistan. This constitutional status is
crucial for ensuring the effective functioning and
independence of the prosecutor’s office . According
to V.Yu. Shobukhin, “The decision of Uzbekistan’s
legislature to establish the norms regarding the
Prosecutor’s Office in a separate chapter of the
country’s Constitution is considered correct. The
experience of regulating the establishment and
activities of the Prosecutor’s Office in the Republic
of Uzbekistan is of particular importance both in
terms of the constitutional-legal status of
prosecutorial bodies and the study of their
normative-legal foundations, as well as for learning
from this experience in other countries
.”
The prosecutor’s office, as a state div with a
unified system, gains legal capacity from the
moment it is established. Its legal capacity means
the ability to have rights and obligations as a state
organ and to perform activities within its
jurisdiction. This legal capacity allows the
prosecutor’s office to exercise all the powe
rs
defined by law, which includes the right to engage
in relationships with other state bodies, citizens,
and other individuals.
Another important feature is the powers of the
prosecutor’s office, which define its unique legal
status. The Constitution and laws grant the
prosecutor’s office a special status and specific
powers. Based on these powers, the prosecutor’s
office serves as a unique div that helps ensure
compliance with laws across all branches of
government. No other div possesses such broad
and diverse powers, such as assisting in judicial
proceedings and overseeing the enforcement of
laws by state bodies. These activities, which span
across the judicial, executive, and legislative
branches, highlight the prosecutor’s office’s critical
role.
REFERENCES
1.
Guidelines on the Role of Prosecutors
https://www.ohchr.org/en/instruments-
mechanisms/instruments/guidelines-role-
prosecutors
2.
Кутафин О. Е. Избранные труды / сост. В. В.
Комарова.
-
М.: Проспект,2016. 368 с.
3.
Mitsilegas, V. (2021). European prosecution
between cooperation and integration: The
European Public Prosecutor’s Office and the
rule of law. Maastricht Journal of European and
Comparative
Law,
28(2),
245-264.
THE USA JOURNALS
THE AMERICAN JOURNAL OF APPLIED SCIENCES (ISSN
–
2689-0992)
VOLUME 06 ISSUE06
52
https://www.theamericanjournals.com/index.php/tajpslc
https://doi.org/10.1177/1023263X21100593
3
4.
Bellin J. (2020). Expanding the reach of
progressive prosecution. The Journal of
Criminal Law and Criminology (1973-), 110(4),
707
–
717.
https://www.jstor.org/stable/48595412
5.
Sklansky D.A. (2016). The nature and function
of prosecutorial power. The Journal of Criminal
Law and Criminology (1973-), 106(3), 473
–
520. http://www.jstor.org/stable/26404025
6.
Модели
и
стандарты
прокурорской
деятельности в современных условиях:
учебное пособие / Е.Л.Никитин, Н.В.Кулик. –
Санкт
-
Петербург: Санкт Петербургский
юридический
институт
(филиал)
Университета прокуратуры Российской
Федерации, 2018. –
С.18
-19
7.
Sklansky D.A. (2016). The nature and function
of prosecutorial power. The Journal of Criminal
Law and Criminology (1973-), 106(3), 473
–
520. http://www.jstor.org/stable/26404025
8.
Marc L. Miller, Domination and Dissatisfaction:
Prosecutors as Sentencers, 56 Stan. L. Rev.
1211, 1252 (2004); Stephanos Bibas,
Prosecutorial Regulation Versus Prosecutorial
Accountability, 157 U. Pa. L. Rev. 959, 960-61
(2009).
9.
Tonry, M. (2012). Prosecutors and Politics in
Comparative Perspective. Crime and Justice,
41(1), 1
–
33. https://doi.org/10.1086/666975
10.
Bibas, S. (2009). Prosecutorial Regulation
versus Prosecutorial Accountability. University
of Pennsylvania Law Review, 157(4), 959
–
1016. http://www.jstor.org/stable/40380261
11.
Чуглазов Г. Прокуратура в системе органов
государственной власти // Законность.
2003. № 2. С. 30
- 32.
12.
Исламов З.М. К какой власти отнести
прокуратуру?
-
Народное слово, 3 июля
2003 года.
13.
Раджабова М.А. Ҳуқуқий давлатчилик сари.
-
Т.: “Ўзбекистон”, 2000. Б. 22
-25.
14.
Абдуолимов
У.Х.
Прокуратура
органларининг давлат механизмида тутган
ўрни ва фаолиятининг ташкилий
-
ҳуқуқий
асосларини такомиллаштириш юзасидан
айрим мулоҳазалар. Academic research in
educational sciences,2022, 3 (2), 62-72. doi:
10.24412/2181-1385-2022-2-62-72
15.
Ўзбекистон Республикаси Конституцияси.
Расмий
нашр.
–
Тошкент:
“Ўзбекистон”нашриёти,
2023.
71–
72-
бетлар.
16.
Ўзбекистон Республикаси Конституцияси.
Расмий нашр. –
Тошкент: “Ўзбекистон”
нашриёти, 2023. 4, 7
-
бетлар
17.
Ўзбекистон Республикаси Конституцияси.
Расмий нашр. –
Тошкент: “Ўзбекистон”
нашриёти, 2023. 8
-
бет
18.
Забарчук Е.Л., Саломаткин А.С. Обеспечение
законности
в
деятельности
органов
государственной
власти
субъектов
Российской Федерации и органов местного
самоуправления. М., 2007. С. 16.
19.
Отахонов
Ф.Х.
Прокуратуранинг
конституциявий мақоми ва қонунийликни
таъминлашдаги роли // Ўзбекистон
Республикаси
Бош
прокуратураси
Академияси Ахборотномаси, 2022. №1 (49).
–
Б. 18
-19.
20.
Джасимов И.К. Қонун устуворлигини
таъминлаш прокуратуранинг муқаддас
бурчидир // Ўзбекистон Республикаси Бош
прокуратураси Академияси Ахборотномаси,
2022. №1 (49). –
Б. 47.
21.
Ульянов
А.
Конституциолизация
прокуратуры Российской Федерации в
системе публичной власти: дисс. ... канд.
юрид. наук. –
Екатеренбург, 2020. с. 71.
22.
Бондар
Н.С.,
Джагарян
А.А.
Конституционализация
прокурорского
надзора
в
Российской
Федерации:
проблемы
теории
и
практики
//
Конституционное и муниципальное право.
2015. № 7. С. 10.
23.
Б.Пўлатов,
З.Турсунов.
Ўзбекистон
Республикаси
конституциясида
прокуратура ва унинг такомиллашуви //
THE USA JOURNALS
THE AMERICAN JOURNAL OF APPLIED SCIENCES (ISSN
–
2689-0992)
VOLUME 06 ISSUE06
53
https://www.theamericanjournals.com/index.php/tajpslc
Ўзбекистон
Республикаси
Бош
прокуратураси Академияси ахборотномаси.
№4 (32). 2021. 4
-
б.
24.
Шобухин
В.Ю.
Конституционное
регулирование статуса прокуратуры в
Российской Федерации и Республике
Узбекистан:
сравнительно
-
правовой
анализ.// Ўзбекистон Республикаси Бош
прокуратураси Академияси ахборотномаси
№4, 2019. –
с. 16.
25.
Wade, M.L. A European public prosecutor:
potential and pitfalls. Crime Law Soc Change
59,
439
–
486
(2013).
https://doi.org/10.1007/s10611-012-9406-x
