7
Volume 04 Issue 04-2022
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
VOLUME
04
I
SSUE
04
Pages:
7-10
SJIF
I
MPACT
FACTOR
(2020:
5.
453
)
(2021:
5.
952
)
(2022:
6.
215
)
OCLC
–
1176274523
METADATA
IF
–
7.659
Publisher:
The USA Journals
ABSTRACT
One of the most important responsibilities of any jurisdiction the provision of fair punishment of persons who
committed crimes. The ultimate purpose of judicial reform is to create all the essential conditions for the fair
implementation of the guarantees of personal freedom of citizens. The country's attitude toward the individual's
freedom and inviolability is reflected in the high level of legal protection it receives - the effective functioning of the
judiciary in the country to protect the rights and interests of the individual.
KEYWORDS
Supreme Court, judicial practice, Romano-Germanic system’s.
INTRODUCTION
The adoption of the "habeas corpus" institution in our
country, which transfers the right to approve arrest as
a measure of constraint from the prosecutor to the
court, was a crucial step. It would not be an
exaggeration to claim that this decision was in a timely
manner and with great thought fullness. When it
comes to Uzbekistan's international authority, the
country's position in the key international rankings
Research Article
THE ROLE OF COURT DECISIONS AS A LEGAL SOURCE IN THE
CRIMINAL LEGISLATION OF FOREIGN COUNTRIES
Submission Date:
March 26, 2022,
Accepted Date:
April 04, 2022,
Published Date:
April 16, 2022
|
Crossref doi:
https://doi.org/10.37547/tajpslc/Volume04Issue04-02
Musaev Umidbek Maksudbekovich
Master’s student, High School of Judges under the Supreme Judicial Council of the Republic of Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
8
Volume 04 Issue 04-2022
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
VOLUME
04
I
SSUE
04
Pages:
7-10
SJIF
I
MPACT
FACTOR
(2020:
5.
453
)
(2021:
5.
952
)
(2022:
6.
215
)
OCLC
–
1176274523
METADATA
IF
–
7.659
Publisher:
The USA Journals
remains low. The fact that Uzbekistan is ranked 92nd in
the Rule of Law Index, 72nd in the Civil Justice
Indicator, and 66th in the Criminal Justice Indicator
shows that the judicial system and its organizational
and legal structure still need to be improved.
The Presidential Decrees "On additional measures to
further improve the activities of the courts and
increase the efficiency of justice" and "On measures to
further strengthen guarantees for the protection of
the rights and freedoms of the individual in judicial
activity" are important documents in resolving the
aforementioned issues.
Definitely it is needed to consult the Anglo-Saxon legal
system when carrying out these tasks. Different
perspectives on judicial review or comparative legal
examination of judicial practice exist in the Anglo-
Saxon legal system.
Although Western criminal justice systems have a wide
range of national models, they are today ideologically
homogenous. It is founded on human rights
philosophy and core democratic principles, including
the presumption of innocence, the right to a fair trial,
the right of the accused to a lawyer, and the protection
of individual rights while using procedural coercion.
The following are some of the characteristics of judicial
oversight in the Anglo-Saxon legal system:
The function of the pre-trial proceedings is clearly
defined, including the police's accusatory function;
Judicial oversight is based on the principle of
adversarial proceedings of the parties;
Evidence gathered in violation of a person's
constitutional rights is declared inadmissible in every
case;
Judicial oversight is not a separate institution, but
rather an inherent aspect of the criminal justice
system, including pre-trial proceedings;
Judges not only consider and resolve specific issues
related to the restriction of an individual's
constitutional rights, but also develop and create legal
norms;
In the oversight process, the court not only evaluates
the legality and validity of decisions and actions, but
also examines and discusses the evidence. The criminal
prosecution is ended if there is inadequate evidence.
There are now differing viewpoints on whether judicial
practice (case law) or the Plenum's decision should be
regarded a source of law in other countries (members
of a mixed legal system).
Although the terms " judicial practice " and "judicial
precedent" are frequently used interchangeably in
current legal literature, we can see that their meanings
are identical. However, the following theories on the
subject should be considered. To date, there is no
single method for comprehending the court's
precedent in a clear and straightforward manner.
According to Pavel Alexandrovich Guk, the professor
of the Saratov State Law Academy, “Judicial precedent
is a judicial decision of the highest div of the judiciary
in a specific case, issued within the framework of a
certain legal procedure (judicial production), which
contains a normative-legal provision (judicial norm)
published in official collections and having the
imperative application for similar cases in the future”.
In fact, in the Anglo-Saxon countries, such a practice
was established, and scientific research was conducted
on the subject.
9
Volume 04 Issue 04-2022
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
VOLUME
04
I
SSUE
04
Pages:
7-10
SJIF
I
MPACT
FACTOR
(2020:
5.
453
)
(2021:
5.
952
)
(2022:
6.
215
)
OCLC
–
1176274523
METADATA
IF
–
7.659
Publisher:
The USA Journals
In agreement with Guk P.A., Elena Gennadievna
Lukyanova, professor of the Federal Research
Sociological Center of the Russian Academy of
Sciences, proposes that “a judicial precedent is a
decision in a specific case, made in the Anglo-Saxon
legal structure, where there are imperative rules for
consideration of similar cases in the future, which is
recognized as a source (form) of law in the doctrine
and practice of states”.
The judicial precedent, in our opinion, is judgements on
criminal cases based on the Supreme Court of the
states of the Anglo-Saxon legal system's experience
and their real application to lower courts.
As an explanation, the Supreme Court also forms the
Plenum's rulings, which are binding on lower courts,
contain explanations on past cases, and provide
directions on how to resolve criminal matters that may
emerge in the future. It is obvious that the formation,
content, scope of its application are very similar to the
judicial precedent. In the Romano-Germanic legal
system, however, it is not regarded a source of law.
Although it is a source of law in the Anglo-Saxon legal
system, it is not included in the Romano-Germanic
system’s source of law. This causes a lot of confusion.
The preparation and promulgation of the decisions of
the Plenum of the Supreme Court of the states of the
Romano-Germanic legal system are similar to the
process of announcing the precedent of the court.
The lines between these two legal systems are
blurring. All states are transitioning to a mixed-system
legal system. Kazakhstan, Ukraine, Belarus, Germany,
Poland, and Azerbaijan are just a few examples.
Despite the fact that these countries are part of the
1 The Constitution of the Republic of Kazakhstan dated
August 30, 1995// http://www.constitution.kz
Romano-Germanic legal family, the Anglo-Saxon legal
family's principles are increasingly reflected in their
national laws.
The Supreme Court of the Republic of Kazakhstan, for
example, is working on a large-scale project to
generalize judicial practice, refusing multiple types of
practice in the execution of criminal and criminal
procedure laws. However, the laws on judicial practice
of the Supreme Court of the Republic of Kazakhstan
provide only for the possibility of interpretation. It
should be noted. that the decisions on judicial practice
issued by the Supreme Court are not binding. This is
because it is underlined that when imposing a sentence
for a crime, the judge will make a decision based on his
inner feelings and the degree of danger posed by the
act
1
.
If there are gaps in the legislation that only become
apparent when they are applied in practice, the courts
resort to the Supreme Court of the Republic of
Kazakhstan for guidance (comments).
The Supreme Court establishes jurisprudence laws in
response to the large number of such appeals that
cause challenges in practice. The Chairman of the
Supreme Court is subject to the right of legislative
initiative, according to the Law "On the Judiciary and
the Status of Judges of the Republic of Kazakhstan”
2
.
Judicial precedents are acknowledged as a norm of law
in the Anglo-Saxon source of law. The norm of law is
established as a result of a single judicial decision and
is binding on other courts dealing with similar cases.
The Russian Federation is part of the Romano-
Germanic legal family, which means that the law is the
2 On the judicial system and the status of judges of the
Republic of Kazakhstan: Law of the Rep. Kazakhstan from 25
Dec. 2000 N 132 // http://adilet.zan.kz/rus/docs/ Z000000132.
10
Volume 04 Issue 04-2022
The American Journal of Political Science Law and Criminology
(ISSN
–
2693-0803)
VOLUME
04
I
SSUE
04
Pages:
7-10
SJIF
I
MPACT
FACTOR
(2020:
5.
453
)
(2021:
5.
952
)
(2022:
6.
215
)
OCLC
–
1176274523
METADATA
IF
–
7.659
Publisher:
The USA Journals
only source of law. In recent years, the move to a
"mixed" legal family has become more prevalent in the
legislation of different countries of the world. The
Anglo-Saxon legal family passes laws that must be
followed, whereas the Romano-Germanic legal family's
courts expand the quantity of court documents based
on Supreme Court clarifications and, like the Anglo-
Saxon countries, strictly enforce them.
The decisions made within the Plenum of higher judicial
bodies influence the interpretation of the principles of
law established by the courts of general jurisdiction
while evaluating particular situations, which is a direct
result of judicial practice.
In the Romano-Germanic countries, the execution of
the rulings of the Plenum of the Supreme Court is
obligatory. There is no requirement that the rulings of
the Plenum of the Supreme Court be officially
recognized as a source of law. In practice, however, the
area of implementation of Supreme Court Plenum
rulings is limited to the aspects of the source of law.
In conclusion, we can say that, despite the fact that a
state's legal system is wholly based on Anglo-Saxon
law, these states' national legislation acknowledges
court decisions/rulings (judicial practice) as a source of
law. However, if the Romano-Germanic norms are also
reflected in the national legislation of a state belonging
to the Anglo-Saxon legal family, then court decisions
(judicial practice) are not officially recognized as a
source of law. It should also be mentioned that, while
judicial decisions from jurisdictions with a mixed
system are not legally recognized as sources of law,
they are used as such in practice.
REFERENCES
1.
The Constitution of the Republic of Kazakhstan
dated
August
30,
1995//
http://www.constitution.kz
2.
On the judicial system and the status of judges of
the Republic of Kazakhstan: Law of the Rep.
Kazakhstan from 25 Dec. 2000 N 132 //
http://adilet.zan.kz/rus/docs/ Z000000132.
