This article discusses the fundamental principles of the organization and activities of the prosecutor's office in the Republic of Uzbekistan and the issues of their improvement based on the recommendations of authoritative international organizations and the experience of developed countries. On the basis of the comprehensive research carried out, the author has developed a conclusion that the current principles do not cover the entire completeness of the regulation of public relations, and also proposes an addition to the Law of the Republic of Uzbekistan «On the Prosecutor's Office» from 2001 with such principles as impartiality, objectivity, confidentiality of personal information, professionalism, protection of public interests.
Keywords : law, prosecutor, principles, legality, unity, centralization, independence, impartiality, objectivity, confidentiality.
It is known that the prosecutor's office is a state body with the authority to ensure the rule of law in all spheres of public relations.
Consequently, it plays a special and important role in regulating public life and ensuring lawful behavior in society.
In turn, the role of the prosecutor's office in the system of separation of powers has been the subject of controversy and controversy among lawyers conducting research in this area.
The general public, academics, practitioners and international experts have not yet reached a consensus on this issue.
Taking this opportunity, we would like to express our firm position on the basis of international documents and recommendations, analysis of reform trends in the world in recent years.
The role of the prosecutor's office in the system of separation of powers differs in Central Asia, the CIS, North and South America and Europe, as already noted, there is no single standard in this regard.
In our opinion, it is necessary to understand the essence of the principle of maintaining a balance of interests and restraint when including the prosecutor's office in a particular system of government, as well as take into account the structure of the state.
Prosecutorial supervision is becoming one of the most important and decisive tools in the full implementation of this principle.
The activities of the prosecutor's office of foreign countries can be divided into several groups depending on their position in the system of separation of powers.
The first group includes states in which the prosecutor's office is an independent body that does not belong to any system of government.
The second group includes countries in which the prosecutor's office is part of the Ministry of Justice.
The third group is made up of states in which the prosecutor's office is part of the judicial system.
Since the legal systems of the CIS member states are similar, it can be noted that in most of them the prosecutor's office is not defined as a single authority.
In particular, the constitutions of these countries do not include the prosecutor's office in the executive, legislative or judicial branches.
At the same time, scientists note that the prosecutor's office has the right to participate in one way or another in all branches of government.
For example, the legislation of the CIS countries such as Russia, Moldova, Azerbaijan, Armenia and Kazakhstan provides that the prosecutor's office is separate, independent and not subordinate to any authorities.
The independence of the prosecutor's office lies in the independent nature of decision-making and actions by prosecutors, and their subordination only to the law, which is expressed in the completeness, objectivity and comprehensiveness of the inspection materials and investigation [1]. Political independence is a form of the principle of independence, according to which prosecutors cannot be members of public associations pursuing political goals.
Publicity is expressed in the openness of the activities of bodies prosecutors, openness to citizens and the media. Through this principle, society can control the activities of the prosecution authorities. Law 2001 with regard to the principle of transparency in 2017 was supplemented by a provision according to which the prosecution bodies carry out their activities publicly by regularly informing the public about their activities overseeing the implementation of laws and combating crime, ensuring access of individuals and legal entities to information about their activities in the manner prescribed by law [2].
Back in 1990, the UN adopted the Guidelines on the Role of Prosecutors [3], according to which, in the exercise of their duties, prosecutors must:
— perform their functions impartially and avoid any political, social, religious, racial, cultural, gender or any other discrimination;
— protect the public interest, act objectively, take due account of the situation of the suspect and the victim and pay attention to all relevant to the case the circumstances, regardless of whether they are beneficial or unfavorable for the suspect;
— maintain the confidentiality of things at their disposal, unless otherwise required for the performance of official duties or the needs of justice;
— take into account the views and concerns of victims when affected their personal interests, and to ensure that victims are informed of their rights in accordance with the Declaration basic principles of justice for victims of crime and abuse of power.
This late twentieth century guideline provides a number of new principles of the activities of the prosecutor's office as a state body in the context of democratic development and strive to make the prosecution bodies more humane, by abandoning the standards of the punitive body [4]. Thus, the UN 30 years ago sought to carry out the transformation of the prosecutor's office towards the humanization of the system.
In Uzbekistan, the prosecutor's office is also not part of any branch of government and operates independently of the legislative, judicial and executive branches.
In particular, Article 120 of the Constitution states that the Prosecutor's Office of the Republic of Uzbekistan exercises its powers independently of any state bodies, public associations and officials and is subject only to the law.
The article also states that prosecutors can suspend membership in political parties and other public associations with political goals during their term of office, and that the organization, powers and procedures of the prosecutor's office are established by law.
This rule guarantees the independence of the body by separating the prosecutor's office from the legislative, executive and judicial branches, institutional, personnel and functional.
In the second group of countries, the prosecutor's office is part of the Ministry of Justice. These include Canada, Japan, South Korea, Estonia, Poland, and Belgium.
In short, in this category of countries, the prosecutor's office is influenced by the executive branch.
In our opinion, this situation does not allow to fully establish effective prosecutorial control over the activities of law enforcement agencies.
Countries where the prosecutor's office is part of the judicial system include Latvia, Spain and Bulgaria.
In this regard, I would like to draw your attention to the recommendations of the Organization for Economic Cooperation and Development.
The guidelines state that if prosecutors work within the judiciary, the law should clearly define the limits of the role of prosecutors and courts, and, if possible, how these functions are performed.
The question itself arises whether this recommendation itself casts doubt on the system and whether it puts the lawyer in a difficult position.
It should be noted that abuses and violations between the authorities increase the relevance of determining the independence of the prosecutor's office, which is part of the executive branch.
Experts say that one of the main reasons why the problems that arise in the law enforcement practice of some countries today remain unresolved is the lack of a separate control system, independent of the branches of government.
In this regard, in recent years, the issue of ensuring the independence of the prosecutor's office in the world, especially their removal from power as an independent body, has become relevant, and concrete reforms and practical measures are being taken in this direction.
Some states have also reformed the status of the prosecutor's office, which was originally part of the executive branch.
In Ireland, for example, the Criminal Prosecutions Act 1974 established the Director of the Attorney's Office and a separate office as an independent executive body.
The attorney general has the right to consult with the director on matters within his / her authority, but not to give instructions or directives [5].
Following the establishment of the Crown Attorney General's Office in England and Wales in 1986, the Protocol on the Relationship between the Attorney General and Directors General further clarified the independence of the Attorney General's Office [6].
Similar trends are observed in Argentina, Brazil, Canada and Northern Ireland.
It is well known that in 2018 Georgia underwent extensive constitutional reforms and gained widespread public recognition. As part of these reforms, the Prosecutor's Office was removed from the Ministry of Justice and transformed into an independent body that respects only the Constitution and the law.
The European Union has created an independent European Prosecutor's Office, which began its work on June 1, 2021.
The first international prosecutor's office was empowered to investigate, prosecute and prosecute crimes affecting the financial interests of the European Union.
The creation of an independent prosecutor's office is explained by the need for tools to bring the fight against transnational crime on the territory of the Union to a qualitatively new, effective level.
The International Association of Prosecutors' standards clearly state that the activities of the prosecutor must be independent and free from political interference.
The independence of decision-making by the prosecutor's office helps the executive branch to feel the principle of the rule of law and the inevitability of punishment.
This task must be carried out absolutely freely and unimpeded.
Failure to do so may be unlawfully influenced by other links.
Thus, the independence of the prosecutor's office is a guarantee of impartiality. This, in turn, requires prosecutors to operate on the basis of strict ethical standards and the rule of law.
International standards state that the independence of the prosecutor's office must always be upheld, regardless of any pressure from the media, individuals or groups in society [7].
The lack of independent prosecutorial oversight and mechanisms of action can lead to an increase in violations by the executive branch.
We believe that the subordination of the prosecutor's office to the executive branch violates the system of control and balance.
The International Association of Prosecutors' standards state that prosecutors should be guaranteed the right to make decisions and initiate proceedings voluntarily, in accordance with the law, without any political or other influence from the executive branch.
It is the independence of the prosecutor's office that is the most important condition for strengthening national statehood and ensuring full protection of the rights and freedoms of citizens.
In turn, effective public and parliamentary oversight of independent prosecutors is needed.
It is also important that the activities of the prosecutor are carried out on the basis of transparency and public accountability, in accordance with international standards and national legislation.
The prosecutor's office may receive instructions from other branches of government, such instructions must be transparent and comply with the requirements of the law.
In connection with the above, we consider it appropriate to emphasize the following:
— it is necessary to ensure the constitutional independence of the prosecutor's office from other branches of government;
— Prosecutors are not allowed to simultaneously work in other branches of government;
— It is important that prosecutors make independent and law-based decisions, act on the basis of existing laws, without the influence of political authorities and various party interests;
— the prosecutor's office must report in its activities only to the public and the public;
— Control over the activities of the prosecutor's office should be carried out only in the form of departmental, parliamentary and public control.
In recent years, large-scale measures have been taken in our country to improve the efficiency of the prosecutor's office. In particular, in 2016–2021, more than 20 regulatory legal acts on the activities of the prosecutor's office were adopted.
These reforms marked a unique and important turning point in the history of the prosecutor's office, ensuring the transparency and openness of the system.
In the Senate of the Oliy Majlis, a special commission has been created to establish effective supervision over the activities of the prosecutor's office.
In addition, a procedure has been introduced for the submission of annual reports by local prosecutors to the Soviets of People's Deputies.
We all know that 20 years have passed since the adoption of the Law of the Republic of Uzbekistan «On the Prosecutor's Office» in the new edition.
Today, more than 100 regulations define the rules, tasks and powers that govern the activities of the prosecutor's office. In addition, a number of recommendations of international organizations have been developed to ensure the independence of the prosecutor's office, the definition of its powers, the transfer of service, and the social protection of employees.
The norms of the Law «On the Prosecutor's Office» by their nature lag far behind the changes in the life of the state and society, legal reforms, international standards and do not correspond to the relevant legislation.
In addition, the disparate definition of the rules for the operation of a unified system in different legislative acts can have negative consequences. Therefore, we believe that it is necessary to adopt a new law «On the Prosecutor's Office». In this regard, it is necessary to clearly define in the law the status of prosecutors, issues of ensuring their independence, impartial criteria for selection and promotion. In addition, in order to fully realize the noble idea of «Human dignity» in accordance with international standards, the law must critically review the activities of the prosecutor's office, in particular, strengthen control over the implementation of laws, effective protection of human dignity, rights and freedoms; it is advisable to establish norms aimed at improving the participation in the courts and the quality of investigations.
In turn, it is important to ensure full openness and transparency of the activities of the prosecutor's office and establish effective public control.
In conclusion, it should be noted that the true independence of the prosecutor's office serves to ensure a clear and uniform implementation of laws in any society, increase the efficiency of the executive branch and, ultimately, the full realization of human rights.
References:
- A team of authors. Prosecutor supervision / Textbook. — T.: TSUL, 2019. P. 188.
- Ton L. G. Prosecutor's supervision: a textbook / — T.: Publishing house TSIL, 2011. — 254 p.
- Guidelines on the Role of Prosecutors, adopted by the Eighth United Nations Congress on Prevention Crime and Treatment of Offenders, Havana, Cuba, August 27 — September 7, 1990. https://www.unodc.org/documents/ congress//Previous_Congresses/8th_Congress_1990/028_ACONF.144.28.Rev.1_Report_Eighth_United_Nations_Congress_on_the_Prevention_of_Crime_and_the_Treatment_of_Offenders_R.pdf.
- Hessick, F. Andrew and Saujani, Reshma, Plea Bargaining and Convicting the Innocent: The Role of the Prosecutor, the Defense Counsel, and the Judge (2002). Brigham Young University Journal of Public Law, Vol. 16, p. 189, 2002, Available at SSRN: https://ssrn.com/abstract=1443997.
- Ireland, Office of the Attorney General, Prosecution of Offences Act, 1974, sect. 2 (5) and (6).
- United Kingdom, Attorney General’s Office, Crown Prosecution Service, Serious Fraud Office and the Revenue and Customs Prosecutions Office, Protocol between the Attorney General and the Prosecuting Departments (London, July 2009).
- International Association of Prosecutors, Standards of Professional Responsibility and Statement of the Essential Duties and Rights of Prosecutors, item 3.
