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.
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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2693-0803)
Published:
November 30, 2021 |
Pages:
81-88
Doi:
https://doi.org/10.37547/tajpslc/Volume03Issue11-12
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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.
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