Ensuring Guarantees Of Rights Of Participants In Electronic Criminal Proceedings

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Suyunova, D., & Bhushan, T. (2021). Ensuring Guarantees Of Rights Of Participants In Electronic Criminal Proceedings. The American Journal of Political Science Law and Criminology, 3(11), 81–88. https://doi.org/10.37547/tajpslc/Volume03Issue11-12
Dilbar Suyunova, Tashkent State University of Law

Doctor of Law, Professor of the Department "Criminal Procedure Law"

Tripti Bhushan, Amity Law School

Academic Tutor & TRIP Fellow O.P Jindal Global Law School LLM(I.P.R) H.N.L.U,Raipur B.A.LL.B.(H) 

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Abstract

When it became known about the COVID-19 pandemic as a global challenge to the entire world community, it became known about the COVID-19 pandemic. By this time, the courts of many states, including Uzbekistan, used in criminal proceedings the experience of conducting court proceedings in the mode of video conferencing (VCS), automatic distribution of cases, consolidation and results of investigative actions by audio, published, published court decisions on the Internet, sending executive documents for compulsory execution in electronic format, etc.

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The USA Journals Volume 03 Issue 11-2021

81

The American Journal of Political Science Law and Criminology
(ISSN

2693-0803)

Published:

November 30, 2021 |

Pages:

81-88

Doi:

https://doi.org/10.37547/tajpslc/Volume03Issue11-12





















































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ABSTRACT

When it became known about the COVID-19 pandemic as a global challenge to the entire world
community, it became known about the COVID-19 pandemic. By this time, the courts of many states,
including Uzbekistan, used in criminal proceedings the experience of conducting court proceedings in
the mode of video conferencing (VCS), automatic distribution of cases, consolidation and results of
investigative actions by audio, published, published court decisions on the Internet, sending executive
documents for compulsory execution in electronic format, etc.

KEYWORDS

Transactions, Invalid Transactions, Disputed Transactions, Limited Mobility, Incompetence,
Invalidation Of Transactions Made By Persons Who Do Not Understand The Importance Of Their
Actions.

INTRODUCTION

The use of digital technologies by courts in
Uzbekistan dates back to the adoption of the
Resolution of the Cabinet of Ministers of the
Republic of Uzbekistan "On measures to
introduce

modern

information

and

communication technologies into the activities
of courts" dated December 10, 2012, which was

the basis for the provision of interactive
services and the introduction of electronic
document management into the judicial
system. Since 2013, the National Information
System of Electronic Judicial Proceedings "E-
SUD" has been developed and launched in
Uzbekistan.

Ensuring Guarantees Of Rights Of Participants In Electronic
Criminal Proceedings


Dilbar Joldasbaevna Suyunova

Doctor of Law, Professor of the Department "Criminal Procedure Law", Tashkent State
University of Law, Uzbekistan

Tripti Bhushan

Academic Tutor & TRIP Fellow O.P Jindal Global Law School LLM(I.P.R) H.N.L.U,Raipur
B.A.LL.B.(H) Amity Law School,Lucknow

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.


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By the Law of the Republic of Uzbekistan dated
May 23, 2019, amendments were made to the
criminal procedural legislation regarding the
use

of

videoconferencing

in

criminal

proceedings. This computer technology has
made it possible to conduct trials at a
considerable distance, when the court and the
convicted person are far from each other.
Positive aspects can be noted when
considering

a

criminal

case

in

the

videoconferencing regime: the possibility for
witnesses, victims who are outside the
territory where the trial is taking place, in order
to save their money, to participate in the court
and give evidence at the place of residence, the
likelihood of interrogating additional witnesses
in court to establish truth in the case,
shortening the time for consideration of cases.

With the onset of the COVID-19 pandemic, the
relevance of remote court hearings has
increased, the highest judicial div of
Uzbekistan explained to the courts about the
need to take measures to timely consider
criminal cases using videoconferencing

1

.

It should be noted that in order to protect the
rights and freedoms of citizens, ensure the
openness and transparency of the courts, the
leadership of Uzbekistan is taking all the
necessary measures, including those aimed at
introducing

modern

information

and

communication technologies into the judicial
system. On September 3, 2020, the President
of Uzbekistan signed the Decree "On Measures
to Digitalize the Activities of the Judiciary",
which defines the tasks of digitalizing the
activities of the judicial authorities, namely:
ensuring the openness and transparency of the
activities of the judicial community by

1

www.supcourt.uz. Resolution of the Plenum of the

Supreme Court of the Republic of Uzbekistan "On
some issues of the application of legislation by the
courts in connection with the introduction in the

introducing special information programs;
expanding

the

possibility

of

remote

participation in court hearings, including
through mobile devices and other forms of
electronic interaction, as well as creating
conditions for the parties to receive court
decisions online; recording of court sessions in
all courts by means of audio recording based
on the petition of the parties in the case and
with the consent of the presiding judge, as well
as the formation of court records using the
system of automatic generation of court
documents, the development of a mobile
application that provides an opportunity to
participate in court sessions in the mode of
video conferencing and much more

2

.

In different countries of the world, procedures
related to the introduction of remote justice
have both similarities and differences. In many
countries, before the outbreak of the COVID-19
pandemic, laws and regulations had already
been passed on the organization of
videoconferencing in court sessions. However,
it was the coronavirus pandemic and the
quarantine measures taken by the states that
became a kind of impetus for the mass use of
communication technologies by courts.

An analysis of the practice of courts on the use
of

information

technology

in

the

administration of justice has shown that during
the period of restrictive measures related to
the coronavirus pandemic, most countries of
the world have transferred legal proceedings
to a remote format in order to prevent the
threat of the spread of coronavirus infection.

At the same time, the increase in the volume of
criminal cases, the consideration of which is
carried out in the videoconferencing regime,
the conduct of electronic document circulation
has revealed some features of information

territory of the Republic of Uzbekistan of measures
to prevent the spread of coronavirus infection
COVID-19."

2

https://prezident.uz/


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technology. The analysis of the remote court
session showed the following:

In areas remote from the center, there is
still a problem with connecting to a single
Internet network.

Not all citizens acting as victims, witnesses
can use new technologies, the trial and
interviewing of its participants in most
cases takes place in court buildings, which
can put pressure on victims and witnesses
when they give evidence;

Insecurity of the network, i.e. conducting a
public court session via the Internet can
give wide publicity to the participation of a
citizen in court and cause a violation of his
honor and dignity;

The participation of the accused in custody
in

the

court

session

in

the

videoconferencing regime and giving
testimony to them raises some doubts
about

their

veracity,

since

the

interrogation procedure is carried out with
the participation of employees of the
remand prison;

It is noted that the conduct of the court
session in the videoconferencing regime
restricts the rights of the defender and the
accused to talk with each other, correct
their own testimony and formulate
questions;

Lack of legislative regulation of the court
session

in

the

format

of

the

videoconferencing.

Of course, the introduction of digital
technologies in the activities of courts, the
holding

of

court

sessions

in

the

videoconferencing regime, especially during
the COVID-19 pandemic, helped to solve the
primary tasks of the state in the administration
of justice. But still, taking into account the
specifics of criminal proceedings, the following

factors should be taken into account, requiring
an early decision.

1.

When working with electronic documents,
legislative protection against unauthorized
access and the prevention of changes in
their content to documents is required.
Digitalization

should

meet

the

requirements of criminal proceedings, its
features, including those related to the
confidentiality of the testimony of victims,
witnesses and other participants in the
process.

2.

During the height of the COVID-19
pandemic, the likelihood of its second
wave, there is a need to develop a unified
digital platform for courts with an
increased level of channel protection,
through which the information of persons
involved in the case is transmitted, as well
as an independent server for storing
information on each specific case ... It is
appropriate to note the specifics of cases
in which offline court sessions would be
held in closed court sessions (crimes
against sexual freedom, in cases involving
state secrets, etc.), since this issue should
be regulated separately in the law.

3.

Conducting

court

sessions

in

the

videoconferencing regime should in no
way violate the rights of participants in
criminal proceedings. The accused should
be given the opportunity to communicate
with his defense lawyer in unlimited time,
victims and witnesses should give their
testimony in court freely, without any
pressure from the organizers of the
videoconferencing process. At the same
time, ensuring the safety of all participants
in a trial is a fundamental element of a fair
trial.

4.

All participants in the process should be
guaranteed the rights to defense of both
the accused and the victims and witnesses.
As a rule, the defender needs to provide a


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separate room with an established Internet
network

or

Skype,

in

order

to

communicate freely with his client in an
unlimited time period. In this context, the
accused should also be ensured his right to
an objective, free narration of the events of
the crime, since the accused, who is in
custody, participates in the court session in
the videoconferencing regime in the
presence of the employees of the
institution for the execution of punishment
and is under their supervision.

5.

Of course, we cannot completely replace
real litigation with digital technologies.
However, today's events related to the
coronavirus pandemic have forced the
judiciary to use the power of video
conferencing in judicial activities, and thus
exercise their functions of administering
justice.

Therefore, our task is to use new technologies
only with the condition of guaranteeing the
rights of citizens participating in criminal
proceedings. In addition, it should be borne in
mind that when assessing the evidence
collected in the case, the court must check its
reliability, taking into account the quality of the
image, sound and other factors that may
subsequently be important for deciding
whether a person is guilty or innocent.

Glimpse of Videoconferencing and Judicial
Proceedings: General

Considerations in Covid-19 in an Electronic
Criminal Proceedings

In utmost felonious or civil trials (as distinct
from procedural sounds and prayers), the
individual parties (or, in felonious matters, the
prosecutors and indicted) and their attorneys

3

See on this, and more generally, Organization for

Security and Co-operation in Europe Office for
Democratic Institutions and Human Rights (“OSCE
ODIHR”), “The functioning of courts in the

typically appear physically in person before the
Court. The same is true when a person arrested
or detained on a felonious charge is first
brought before a judicial authority within the
first hours or days after arrest.

Still, in response to the COVID-19 outbreak,
numerous judicatures are making available an
option, or assessing a demand, that
individualities and their attorneys appear at
similar sounds only by videotape-conferencing
or analogous backups for physical presence.

3

Indeed, the UN Human Rights Council, in a
resolution espoused by agreement in July 2020
Urges States to insure that judicatures have the
necessary coffers and capacity to help to
maintain

functionality,

responsibility,

translucency and integrity, and to insure due
process and the durability of judicial
conditioning, including effective access to
justice harmonious with the right to a fair trial
and other abecedarian rights and freedoms,
during extraordinary situations, including the
COVID-19 epidemic and other extremity
situations;

Encourages States to make available to
judicatures current information and

dispatches technology and innovative online
results, enabling digital connectivity, to help to
insure access to justice and respect for the
right to a fair trial and other procedural rights,
including in extraordinary situations, similar as
the COVID19 epidemic and other extremity
situations, and to insure that judicial and any
other applicable public authorities are suitable
to unfold the necessary procedural frame and
specialized results to this end;

Covid-19

pandemic”

(2

Nov

2020),

https://www.osce.org/odihr/469170, pp 13, 20-28.


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As a starting point, whenever all the parties
give their free and completely informed
concurrence to the use of videotape-
conferencing in any given judicial proceedings,
its use in similar circumstances would appear
not to give rise to enterprises under
transnational mortal rights law and rule of law
norms. In furnishing for and assessing whether
concurrence is freely given and completely
informed, regard must be given to the
particular situation of women, children, aged
persons, persons with disabilities, persons
deprived of liberty, and others who may be in a
situation where they may be forced or
manipulated into furnishing concurrence that
isn't completely voluntary and informed.

As the coming section will bandy, the demand
of hype of sounds must also be admired .when
similar technologies are used. As enterprises
the duty of videoconferencing as a cover for
physical presence of an individual party (
including, in felonious proceedings, the
indicted person) in a judicial hail, without the
party’s concurrence, the situation is more
complex.

4

An original question is whether, for the type of
hearing concerned, transnational law confers a
right of the individual to be physically present,
if so, the coming question is whether
transnational law permits the right to be
limited in some circumstances, including
through a denigration in situations of exigency,
and whether the applicable criteria for such a
limitation or denigration are met.

As will be described in the sections that follow,
transnational law easily contemplates a right of
the indicted to be physically present for his or
her felonious trial, and the right of a person

4

This briefing note only addresses the imposition of

videoconferencing against the wishes of an
individual party or accused who wishes to be
physically present for the hearing, it does not
address the use of videoconferencing for the
examination and cross-examination of witnesses.

arrested or detained on felonious charges to
be physically present for his or her original hail
before the judge. The broader right of anyone
deprived of liberty on any ground to challenge
the legality of his or her detention before a
court may also indicate the right to be brought
physically before the court. Indeed if
transnational law doesn't confer a right of
individualities to be physically present for the
type of hail in question, if such a right is handed
for by public law, also the question must also
be considered whether

the duty

of

videoconferencing in the circumstances is
permitted under public law and whether it's
being applied in a manner that completely
respects the right of the existent to nonpublic
communication with their counsel, as well as
rights of non-discrimination and equal access
to justice.

5

In sounds other than those for which
transnational law and norms contemplate a
right of physical presence, the non-consensual
duty of videoconferencing on a judicial hail may
be admissible if it's grounded in law, non-
discriminatory, time- limited and demonstrably
necessary and commensurate in the original
circumstances of the COVID-19 epidemic and
the specific characteristics of the individual
case and is enforced with safeguards to
address the other fair trial rights of the
affected person.

Journey of Videoconferencing and Criminal

Trials

The right to fair trial under transnational mortal
rights law, including as set out in the ICCPR,
applies to all felonious cases and civil suits. The
general demand of fairness is farther

5

See e.g. European Court of Human Rights

(“ECtHR”), Marcello Viola v Italy (2006),
http://hudoc.echr.coe.int/eng?i=001-77246, para 68.


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developed upon by a set of specific guarantees
in

felonious

proceedings.

For

case,

composition 14 (3) of the ICCPR provides in
part. In the determination of any felonious
charge against him, everyone shall be entitled
to the following minimal guarantees, in full
equivalency

(b) To have acceptable time and installations
for the medication of his defence and

to communicate with counsel of his own
picking;

(d) To be tried in his presence, and to defend
himself in person or through legal

backing of his own picking; to be informed, if
he doesn't have legal backing, of this right; and
to have legal backing assigned to him, in any
case where the interests of justice so bear, and
without payment by him in any similar case if
he doesn't have sufficient means to pay for it;

(e) To examine, or have examined, the
substantiations against him and to gain th
attendance

and

examination

of

substantiations on his behalf under the same
conditions as substantiations against him; The
Human Rights Committee has articulated
certain limits to the compass for denigrations
from composition 14 in situations of exigency.
It has said that, “Safeguards related to
denigration, as embodied in composition 4 of
the Covenant, are grounded on the principles
of legitimacy and the rule of law essential in the
Covenant as a whole” and that “ the principles
of legitimacy and the rule of law bear that
abecedarian conditions of fair trial must be
admired during a state of exigency”.

6

6

General Comment no 29 on States of Emergency

(article 4) (2001),
https://undocs.org/CCPR/C/21/Rev.1/Add.11, paras 15-
16.

7

General

Comment

no

32,

https://undocs.org/CCPR/C/GC/32, para 6. See also
Inter-American

Likewise, the Committee has emphasised
States derogating from normal procedures
needed under composition 14 in circumstances
of a public exigency should insure that similar
denigrations don't exceed those rigorously
needed by the extremities of the factual
situation. The guarantees of fair trial may
noway be made subject to measures of
denigration that would circumvent the
protection of non-derogable rights..

7

Swinging

from abecedarian principles of fair trial,
including the presumption of innocence, is
banned at all times.

In cases potentially leading to the duty of the
death penalty, then non-derogable right to life
(and not to be arbitrarily deprived thereof),
including under composition 6 of the ICCPR, is
also engaged. Since, as the Human Rights
Committee has held, “ the guarantees of fair
trial may noway be made subject to measures
of denigration that would circumvent the
protection of nonderogable rights”, and “ as
composition 6 of the Covenant isnon-
derogable in its wholeness,” accordingly “ any
trial leading to the duty of the death penalty
during a state of exigency must conform to the
vittles of the Covenant, including all the
conditions of composition 14.” Consequently in
all circumstances, including the COVID-19
epidemic and other publicextremities, “ In
cases of trials leading to the duty of the death
penalty scrupulous respect of the guarantees
of fair trial is particularly important. The duty of
a judgment of death upon conclusion of a trial,
in which the vittles of composition 14 of the
Covenant have not been admired, constitutes

Commission on Human Rights, “IACHR Calls on the
OAS States to Ensure That the Emergency
Measures They Adopt to Address the COVID-19
Pandemic Are Compatible with Their International
Obligations”

(17

April

2020),

http://www.oas.org/en/iachr/media_center/PRelea
ses/2020/076.asp


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a violation of the right to life ( composition 6 of
the Covenant).”

8

Composition 14 (3) (d) of the ICCPR, as shown
over, specifically recognizes the right of a
person, in full equivalency, “ to be tried in his
presence”.

The European Convention on Human Rights
doesn't contain a provision specifically
furnishing for the right “to be tried in one’s
presence”.22 Still, the European Court of
Human Rights judgments that contemplate use
of videoconferencing in civil proceedings or
felonious

appeal

sounds,

specifically

discrepancy similar proceedings with felonious
trials, in respect of which the Court constantly
emphasizes the need for physical presence.

9

The Court has affirmed that, “ In the interests
of a fair and just felonious process it's of capital
significance that the indicted should appear at
his trial”, and that, “ the right to be present at
the trial is one of the foundation rights of an
indicted”.

10

The African Charter on Human and Peoples’
Rights makes a general provision for fair trial in
its composition . The African Commission on
Human and Peoples’ Rights developed on this
in its 2003 . Principles and Guidelines on the
Right to a Fair Trial and Legal Backing in Africa,
affirming that “ In felonious proceedings, the
indicted has the right to be tried in his or her
presence” and, “ The indicted has the right to
appear in person before the judicial div.”

8

General Comment no 32, paras 6 and 59; General

Comment no 36 on article 6 right to life
(2019), https://undocs.org/CCPR/C/GC/36, paras 41
to 42, 67.

9

E.g. Sakhnovskiy v Russia [GC] (2010),

http://hudoc.echr.coe.int/eng?i=001-101568,

para

96;
Marcello

Viola

v

Italy

(2006),

http://hudoc.echr.coe.int/eng?i=001-77246, para 50;
and Golubev v

Composition 16 (3) of the Arab Duty on Human
Rights provides that everyone charged with a
felonious offence has “ The right to be tried in
his presence”.

11

Easily, the implicit compass for duty of
videoconferencing against the wishes of the
person is at its narrowest in felonious trials.
Indeed, given the vittles and judicial logic set
out over, it's delicate to see how on-consensual
videoconferencing of the indicted and his or
her counsel could ever be compatible with the
safeguards needed of a felonious trial,
particularly recalling the Human Rights
Committee’s above- noted protestation that, “
Swinging from abecedarian principles of fair
trial, including the presumption of innocence,
is banned at all times.”

The ICJ is ignorant of any case in which the
Human Rights Committee, the European Court
of Human Rights or any other indigenous
mortal rights court has plant thenon-
consensual Duty of videoconferencing on the
indicted and/ or his counsel in a felonious trial,
to be compatible with the right to a fair trial.

REFERENCES

1.

Dagel ,P.S. (1975).

Conditions for

establishing criminal liability,

In Legal

studies

, (4), 70 p.

2.

Lebedev, V.М., (2013).

Kommentarii k

Ugolovnomu

Kodeksu

Rossiiskoi

Federatsii

[Commentary on the Criminal

Code of the Russian Federation], Moskow,

Urait,

285 p.

Russia

(decision,

2006),

http://hudoc.echr.coe.int/eng?i=001-78357.

10

Golubev

v

Russia

(decision,

2006),

http://hudoc.echr.coe.int/eng?i=001-78357,

citing

Colozza v
Italy (1985), Series A no 89, para 27.

11

The American Convention on Human Rights makes

general provision for fair trial under its article
8 (more particularly, the “right to be heard”), but
does not specifically address whether the person
should be tried in his or her presence.


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Suyunova D.J., Shamsutdinov B. (2021)

Digitalization of Criminal Proceedings in
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[Medico-legal

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An

International

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New Covid-19 crisis:

domestic abuse rises worldwide.

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York

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available

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5.

Suyunova,

D.J.

(2021)

Voprosi

sovershenstvovaniya ugolovno-pravovix
mer dlya predotvrasheniya nasiliya v
otnoshenii jenshin

[Eurasian Law Journal]

Ufa,

available

at:

https://www.elibrary.ru/item.asp?id=4555
9037
(accessed 5 March 2021).

6.

Suyunova, D.J. И.Ачария.

Prospect For

The Institution Of Peliminary Hearing in
Uzbekistan

[The American Journal of

Political Science Law and Criminology]
available at

References

Dagel ,P.S. (1975). Conditions for establishing criminal liability, In Legal studies, (4), 70 p.

Lebedev, V.М., (2013). Kommentarii k Ugolovnomu Kodeksu Rossiiskoi Federatsii [Commentary on the Criminal Code of the Russian Federation], Moskow, Urait, 285 p.

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