The USA Journals Volume 03 Issue 11-2021
37
The American Journal of Political Science Law and Criminology
(ISSN
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2693-0803)
Published:
November 30, 2021 |
Pages:
37-47
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-07
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‘
ABSTRACT
The article presents the theoretical and legal analysis of the functions of the judiciary and the
role of judicial review and place, made the scientific and theoretical conclusions based on
them.
KEYWORDS
The judiciary, judicial supervision, law, legal act.
INTRODUCTION
Judicial independence and ensuring justice
in courts is the most important matter of
debate in this globalization period.
According
to
UN
Human
rights
department,
there
are
frequently
appearing problems with making judicial
system independent and liberty of judicial
processes.
All these long-term and efficient reforms
that are being done in modern Uzbekistan
possess the core idea of ensuring human
rights as the most valuable trait. Provided
that, the most essential measurement of
how independent courts are is to make fair
judgement abiding by the law. ‘Only in this
case, as was claimed by the President of
the
Republic
of
Uzbekistan
Sh.M.Mirziyoyev, each and every person
that steps into a court hall, could be
perceived that there is a justice waiting
The Role And Functions Of The Court In Criminal Proceedings
In The New Uzbekistan
Gulnoza Ilkhomovna Yusupdjanova
Lecturer, Department Of Crime Prevention And Public Order, Specialized Branch Of Tashkent
State Law University, 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.
The USA Journals Volume 03 Issue 11-2021
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The American Journal of Political Science Law and Criminology
(ISSN
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Published:
November 30, 2021 |
Pages:
37-47
Doi:
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inside’. This means, judicial system is a
significant institution of a law-based
country.
With the help of Five-Area Development
Strategy
Uzbekistan
has
made
a
considerable
number
of
reforms.
Specifically, the second one which is about
ensuring the authentic independence of
judicial system, enhancing the reputation
of courts, democratizing the judicial
system was a noticeable boost for the
realization of the plans. In particular, it is
planned to increase the status of the
judiciary, financial incentives and social
security, strengthen the material and
technical base of the courts, take effective
measures to prevent their unlawful
interference, the independence and
impartiality of the judiciary, the principles
of equality and equality of arms. In order to
expand the scope of the institution
"Habeas Corpus", to strengthen judicial
control over the investigation, as well as to
ensure transparency and openness, there
was
the
introduction
of
modern
information
and
communication
technologies in the judiciary.
THE MAIN FINDINGS AND RESULTS
In modern constitutional states, the
independence of the judiciary is based on
the principle of separation of powers. It
creates a system of checks and balances
aimed at preventing the abuse of power.
The principle of independence means that
the judiciary is a constitutional institution,
and judges who make decisions on a
particular case must be able to carry out
their professional duties without any
external influence by the legislature or the
executive.
On August 10, 2020, the President of the
Republic of Uzbekistan adopted the
Decree
"On
measures
to
further
strengthen the guarantees of protection of
the rights and freedoms of the individual in
judicial and investigative activities." The
decree is aimed at implementing the
constitutional guarantees of individual
rights and freedoms in the field of justice,
improving the access of citizens to justice,
improving the quality of court proceedings
and expanding mechanisms to ensure
equality and adversarial nature of the
parties to make impartial, fair and lawful
judicial decisions.
Among the scientific researches carried out
in our country on the judicial power are G.
A. Abdumajidov, Z.F. Inogamjanova’s
"Problems of judicial control and its
implementation in criminal proceedings",
F. F. Muxitdinova's "Establishment and
development of judicial power in the
Republic of Uzbekistan", the research of
Umarova "The role of the judiciary in
building a democratic state governed by
the rule of law in the Republic of
Uzbekistan", A.U. Egamberdiev’s "Judicial
power: criminal and procedural aspects",
G.M. Shodiev’s "Judicial control over
investigative actions restricting the rights
and freedoms of citizens". According to
the Law of the Republic of Uzbekistan "On
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Courts" and the Code of Criminal
Procedure, criminal justice is administered
by the Supreme Court of the Republic of
Uzbekistan, military courts, the Judicial
Board for Criminal Cases of the Republic of
Karakalpakstan, regional and Tashkent city
courts and district (city) criminal courts.
Some researchers argue that the judiciary
performs the functions of justice and
constitutional review. According to V P
Bojev, the main function of the judiciary is
justice, judicial control, the organization of
the judiciary, and the management of
judicial practice is the authority of the
judiciary
and
the
type
of
its
implementation.
The main function of the judiciary - to
resolve the case, that is, to study the case
comprehensively, thoroughly and make a
lawful, fair verdict - is a fair trial.
Justice regulates the social relations of the
subjects in society, ensuring that such
relations comply with legal norms. It is one
of the areas of state activity. At the same
time, it is a very important authority, the
implementation of which depends on the
functioning of the judiciary.
The main task of the judiciary is to protect
members of society, their rights and
freedoms,
legitimate
interests
from
unlawful aggression of other members of
society, the wrongdoings of the state.
Justice as a form of law enforcement
activity of the state differs from legislative
and executive activities in a number of
respects.
Unlike the legislature, which serves to plan
socio-political
processes,
and
the
executive, which exercises specific control
over the process of social relations, the
purpose of the judiciary is clear, it is based
on the full identification of facts, their legal
assessment and application to specific
cases. One of the most important features
of the judiciary is the full identification of
facts and their legal assessment based on
the study of complex, multidisciplinary
legislation and the analysis of existing legal
norms. In this context, knowledge of
judicial activity is required to be viewed as
a type of thinking activity. Although it is a
type of activity with only its own
characteristics, but it is subject to the
general and special laws of cognition and
therefore requires study not only on the
basis of legal sciences, but also using the
theory of genealogy.
Judicial activity in criminal proceedings is
the administration of justice in criminal
proceedings. It represents the set of
procedural
actions
and
procedural
decisions that the court carries out as a
participant in the criminal proceedings,
carrying out the discussion of the case. Its
constituent
elements
(action
and
judgment) are interrelated and focused on
the tasks facing the court. They form a
coherent system of criminal procedural
activity of the court, which is mutually
compatible, and it is an integral part of
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criminal procedural activity, which is a
slightly higher order system. All the
procedural actions and decisions that make
up the content of the criminal procedural
activity of the court are interconnected
(related) as a chain, they alternate in an
interrelated order of legal acts. Judicial
activity is carried out on the basis of the
rights and obligations established by law.
Therefore, judicial activity is considered as
a means, a method of exercising judicial
powers. The following aspects of judicial
activity can be identified:
•
Application of interested parties to the
court;
•
Commencement of court proceedings;
•
The court enters into a legal
relationship with the participants in the
trial;
•
Exercise of judicial powers;
•
Emergence of new legal relations;
•
Continuation of legal proceedings;
•
A court decision resolving a specific
issue;
•
Termination of judicial activity.
The most important part of judicial activity
is the trial of a specific case by the court
(court proceedings), which is carried out in
a court session and is manifested as the
main form of criminal procedural activity.
This is one of the features that
distinguishes the activities of the court
from the activities of other participants in
the criminal proceedings. Execution of
special procedural actions by the court
before or after the court session (for
example: summoning the parties to the
court session, sending various notifications
to the parties, providing copies of court
decisions, acquaintance with the minutes
of the court session), as well as the court's
decision outside the court session only the
jurisdiction of the court. It should be noted
that these actions and decisions have a
preparatory nature, that is, they play a
secondary - subordinate role in relation to
the trial. Moreover, they are carried out not
by the judge but by the clerk of the court
session or other members of the court.
Judicial activity is the main part of the
whole criminal procedural activity, the
peak of the criminal process and prevails
over the activities of other participants in
the process at the stage of judicial
proceedings. As long as the judiciary is in
power in court, the powers of other state
bodies lose their power, because before
the court, both the prosecutor, who is
provided with the power of state power,
and the defendant sitting in the dock are
equal.
In short, the main subject of criminal
proceedings consists of substantive legal
issues related to the accusation in the
criminal case and the guilt or innocence of
the person involved in the criminal case
related to it. Therefore, a large part of the
judicial activity is occupied by the activity of
reviewing and resolving criminal cases by
the court. Accordingly, according to court
statistics, as of September 2021, 32,583
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criminal cases were considered by the
courts of first instance.
At the same time, the function of resolving
a case in criminal proceedings is not the
sole function of the court. Other issues not
related to the application of criminal law
are also pending before the court. Many of
these issues arise in the course of direct
criminal
proceedings
(change
of
precautionary
measures,
partial
termination of criminal proceedings, etc.)
and in this case their resolution is aimed at
regulating the issues that arise, making
adjustments to the trial, integral, structural
is part of.
In addition to the differentiation of judicial
activity into types depending on the
subject of the trial (content of the case)
and the tasks of the proceedings, the
procedural activity of the criminal court
also differs on the subjects who carry it out.
In criminal proceedings, which form an
integrated system of criminal procedure,
there are various elements called criminal
procedural functions related to individual
elements and general rules, which are the
basis for determining the legal nature and
social orientation of the entire criminal
process.
Until recently, the prevailing view in
criminal proceedings was that the court
would only perform a “case-solving
function” known as a “justice function”.
With
the
implementation
and
development of oversight activities in
criminal proceedings, the judicial oversight
function began to develop as a new
independent procedural function.
The main direction of the exercise of
judicial power is the protection of law
through the administration of justice,
which reflects the social significance and
responsibilities of this activity.
In criminal proceedings, which are a
separate form of justice, only the tasks
specific to the criminal court, in turn,
determine the direction of judicial activity,
based on the objectives of the criminal
process.
In
addition,
in
criminal
proceedings, the criminal court is given
clear powers, which creates features that
are unique to the procedural activities of
the court.
If we examine not only the relationship of
the court with the parties, but also its
procedural activities in a comprehensive
and complete way, then we can see several
other functions of the court. Because
judicial activity is aimed at solving a number
of tasks, as in the procedural activities of
other subjects in the process.
When the court is considered as a subject
of criminal procedural activity, the concept
of its procedural function plays an
important role in defining the description
of the court, its importance, place in the
criminal process and its legal status.
As a subject of criminal procedural activity,
the procedural functions of the court in
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criminal cases are an independent criminal
procedural activity, which is regulated by
law and the tasks set by the criminal
procedural legislation related to the task of
the court must be performed by the court.
The case-solving function is the main
function of the court, and the functions
listed above arise during the resolution of a
case on a particular criminal case. But the
oversight function is now argued by many
scholars as an independent function of the
judiciary. We will talk about this in more
detail.
The supervisory function of the court, i.e.
judicial review, is characterized by the
investigative nature of its criminal
procedural activities.
The function of control (inspection,
observation
for
the
purpose
of
investigation) is carried out by the court at
all stages of the criminal process and is
characterized by verification of the legality
and validity of invalid court decisions
(judgments), as well as procedural actions
and decisions of state bodies.
The introduction of judicial control into the
preliminary investigation stage creates an
integral link between the other stages of
the criminal process, resulting in an
increase in the quality of control, the
effectiveness of the target system.
According to Z.F. Inogomjanova, judicial
control is a guarantee of legality, validity
and fairness of decisions, actions and
inactions and preliminary investigation and
court decisions (regardless of their entry
into force), which are in force at almost all
stages of the criminal process, aimed at
protecting the constitutional rights and
freedoms of citizens. its legal nature
becomes clear only when it is recognized as
an activity that serves.
According to I.E. Slepneva, judicial control
occurs in the pre-trial stage of the criminal
process when decisions made by the
bodies of preliminary investigation violate
the constitutional rights of citizens.
NA Kolokolov says that "the function of
judicial review applies only to the
preliminary investigation, that is, only to
this stage." Z.F. Inogomjanova denies the
above and states that judicial control is
exercised in addition to the preliminary
investigation at the stage of appointing a
criminal case to court and verifying the
legality, validity and fairness of judgments,
rulings and decisions.
According to OV Khimicheva, judicial
control is the activity of the judiciary in
instituting criminal proceedings and in the
preliminary investigation. It can therefore
be said to be a function of the criminal
process. In it, the court serves to ensure
the legitimacy and reasonableness of the
decisions and actions of the bodies of
preliminary investigation to restrict the
rights and freedoms of the individual,
including a system of investigation,
warning and restitution.
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According to VN Galuzo, judicial review is
an
independent
criminal
procedural
function of the court, which is responsible
for verifying the legality and validity of
decisions on detention, arrest and
extension of detention and for improperly
applied coercive measures against the
suspect
and
accused.
consists
of
precautionary measures.
N.N. Kovtun also recognizes that judicial
control is an independent institution of
criminal process and a form of judicial
activity, it is a direction of activity of
criminal process.
The court has to assess the legality of the
activities of other bodies and lower courts
in resolving many of the issues before it in
criminal proceedings.
In
some
cases,
such
oversight
(investigation) is the basis of litigation, and
oversight is the primary function of the
court (consideration of appeals, cassation,
and review by the court under the CPC),
while oversight is a means to achieve other
goals for the court.
It
is
clear
that
the
supervisory
(investigative) function of the court is not
always aimed at protecting or restoring the
rights of the citizen. This activity is also
aimed at verifying the legality of the
procedural activities of state bodies
involved in criminal proceedings.
Based on the above, we can conclude that
the supervisory function of the court, in its
essence and scope, differs from the judicial
function
of
law
enforcement
and
restorative law, and has its own
independent content and essence.
The function of judicial control is to
increase the status and role of the judiciary
in the state and to protect citizens through
the courts.
The function of law enforcement is to
ensure the constitutional rights and
freedoms of every person involved in
criminal proceedings.
When considering a criminal case, the main
task of the court is to correctly resolve the
issue of the guilt of the defendant (the
validity of the accusation against him). This,
in turn, requires the court to examine and
evaluate the evidence presented on the
admissibility issue. At the heart of this
activity is the mandatory verification by the
court of whether the primary investigative
bodies have followed the procedure for
gathering evidence, ie how well they have
complied with the criminal procedural law
in
collecting
the
evidence
under
investigation and other procedural actions.
In any court case, the court protects in one
way or another from the unlawful and
unjustified restriction of the subjective
rights of citizens.
For example, when a court hears a criminal
case, it protects the rights, honor, and
dignity of the defendant, and acquits him
when his guilt is not proven.
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In resolving issues related to the execution
of a conviction under Article 463 of the
Criminal Procedure Code of the Republic of
Uzbekistan, the court shall prevent the
violation of the subjective rights of the
convict and, in the absence of sufficient
grounds, may reject an application for the
replacement of the unserved part with a
heavier penalty.
The law enforcement function of the court
is defined in the tenth part of Article 243 of
the CPC, which provides for the
constitutional protection of citizens.
It considers the petition for the application
of a measure of restraint in the form of
detention against the suspect or accused,
which is related to the restriction of his
rights and freedoms, and makes a clear and
full statement when making a decision
within its competence.
Without the initiator and executor of the
court's investigative actions and the
application
of
coercive
procedural
measures restricting the rights and
freedoms, it only by its decision allows the
investigator and the inquiry officer to carry
out certain procedural and investigative
activities.
When considering the relevant petitions of
the investigating authorities requesting to
restrict the rights of the accused or
another person, the court shall check their
legality and validity, and thus, in
accordance with the Constitution, the
rights of citizens are protected only by the
Constitution protection shall be limited
only to the extent necessary for the
purpose of ensuring the defense of the
country and the peace of the State.
In the absence of sufficient grounds to
carry out procedural and investigative
actions
aimed
at
restricting
the
constitutional rights and freedoms of a
citizen, the court does not allow the
investigative bodies to carry out such
actions, ie prohibits them to do so, thus
ensuring individual rights and freedoms
prevents illegal restriction.
The restorative function of the court is
mainly related to the fact that during the
preparation of the case for trial, the court
considers such cases on the basis of the
prosecutor's
(investigator's,
inquiry
bodies' and the inquiry officer's actions
(inaction) and the power to consider
complaints against their decisions.
Here we can again see that the subject of
the case in court is the issue of ensuring the
rights and freedoms of citizens by law
enforcement agencies.
The purpose of the court hearing of such
complaints is to restore the rights and
freedoms of the citizen, which were
violated by law enforcement agencies and
officials.
A lawsuit aimed at restoring the violated
right shall be initiated only on the basis of
an application (petition) of the interested
person to the court requesting the
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restoration of the violated right or removal
of the obstacle to the exercise of the right.
The purpose of reinstatement is also
sought and achieved in many other court
proceedings
and
proceedings
(for
example, a private prosecution case, a civil
lawsuit for pecuniary and non-pecuniary
damage, an appeal against an illegal court
decision, and a cassation appeal). , the
claim of the acquitted person for
compensation for property damage).
The function of law enforcement arises not
only from the process of consideration and
resolution of the case, protection and
restoration of the rights and interests of
the individual, but also from the creation of
objective conditions for the trial, ensuring
a lawful and fair decision.
Article 6 of the European Convention for
the Protection of Human Rights and
Fundamental
Freedoms
solemnly
proclaimed the right of everyone to a fair
trial. Under the Convention, this concept
encompasses the individual's right to
justice, equality of arms and litigation, and
it is the judge who must ensure that the
trial is fair to all parties involved in the
proceedings, in accordance with the rights
conferred on them by the Convention.
National law also imposes a number of
"security" obligations on the courts. In
carrying out these procedural actions, the
court first of all ensured the full exercise of
its procedural rights by the parties, created
the necessary conditions for open dispute
between the parties, prevented violations
of the principle of equality of parties and
restriction of procedural rights of litigants.
(fair trial).
In addition, in the matter of the guilt of a
significant person and the imposition of a
sentence, attention should be paid to the
role of the conviction in preventing the
offense, which determines the grounds
and amount of the obligation imposed for
the commission of the crime.
Judgment is a threat in the form of a
criminal penalty imposed on a person for
violating the prohibitions established by
criminal law by the state through justice.
The existence of this threat in the norms of
criminal
substantive
law
and
its
implementation by a court verdict to
prevent crime, to hold the motives of a
person to commit a crime, and thus to
protect the rights and legitimate interests
of individuals and organizations, public
interest, law and order and to ensure the
rule of law in the state.
The power of the court to issue a special
ruling, referred to in Article 423 of the CPC,
is
one
of
the
most
important
manifestations of the crime prevention
function.
The court draws the attention of the
relevant organization and official to the
circumstances that led to the commission
of the crime by its private ruling, ie the
necessary measures should be taken in
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cases of violation of civil rights and
freedoms and other violations of the law.
The basis of such court decisions is not the
content of the case, the restoration of
violated rights and the provision of rights,
but the prevention of recidivism of the
same crimes and offenses.
The activities of the court related to the
issuance of private rulings are aimed at
preventing violations of the law, refraining
from actions (inaction) of state bodies,
various organizations and individuals,
which are then considered negative by the
court, and, in general, to increase legal
awareness and legal education.
Although a number of authors argue that
the judiciary cannot be a crime-fighting
div and that the court has universal
powers in this regard, existing legal norms
do not include the court in the system of
anti-crime bodies and do not define crime
as a court task.
According to N.R. Kosevich, “the definition
of the functions of the judiciary and law
enforcement
agencies,
which
were
previously dominant, the responsibility of
the court for the criminal situation should
be rejected as contradicting the idea of the
structure of the judiciary. However, this
fact, whether or not the court is included in
the system of law enforcement agencies,
does not affect the role of the court in
preventing violations of the law.
The crime prevention function of the court
is somewhat broader in its content than
the crime prevention scope traditionally
defined.
CONCLUSION
Based on the analysis of case law, we are
convinced of the following. Private
decisions (rulings) of the court may be
issued not only on the circumstances that
led to the commission of a crime, but also
on other grounds provided by law. In this
case, their impact on crime prevention is
aimed not only at stopping or preventing
the commission of crimes, but also at
preventing other types of offenses in
criminal procedure and criminal law
relations.
Therefore, in our opinion, the expansion of
the scope of judicial control in the legal
system can be assessed as a positive
situation that leads to a higher level of legal
protection of the individual. In many
countries, judicial review of investigative
cases is one of the principles of early
investigation.
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