SOLUTION OF THE CONSTITUTIONAL COURT OF THE REPUBLIC OF UZBEKISTAN

of April 10, 2002

About interpretation of part four of article 62 of the Law of the Republic of Uzbekistan "About courts"

Constitutional court of the Republic of Uzbekistan as a part of the chairman B. Eshonov, judges B. Mirboboyev, U. Bazarov, G. Pirzhanov and S. Hakimova, being guided by Item 3 parts one of article 109 of the Constitution of the Republic of Uzbekistan and article 1 of the Law of the Republic of Uzbekistan "About the Constitutional court of the Republic of Uzbekistan", considered at open session case on interpretation of part four of article 62 of the Law of the Republic of Uzbekistan "About courts".

The question is brought according to article 19 of the Law "About the Constitutional Court of the Republic of Uzbekistan" at the initiative of judges B. Mirboboyev, U. Bazarov, G. Pirzhanov in connection with the address to the Constitutional court of the lawyer of Prezumtsiya law firm K. Zh. Muzaffarov.

Having heard the message of the judge-speaker B. Mirboboyev, opinion of the chairman of presidium of the Tashkent city Bar S. Yakubov, the chairman of the Tashkent city court on criminal cases S. Mirsafayev, the vice-chairman of the Supreme Court of the Republic of Uzbekistan S. Kadyrov, the vice-chairman of the Supreme Economic Court of the Republic of Uzbekistan Sh. Ruzinazarov, the director of the Center for promotion of legal education in case of the Tashkent state legal institute G. Abdumadzhidov, the deputy director of Institute of monitoring of the current legislation in case of Oliy Majlis of the Republic of Uzbekistan M. Gasanov, the chief of Head department of the legislation of the Ministry of Justice of Republic of Uzbekistan H.Sadykova, the manager of legal department of Oliy Majlis of the Republic of Uzbekistan A. Yuldashev, the consultant of the group of experts on communication with the legislative and judicial authorities of the Office of the President of Republic of Uzbekistan H.Isakova, the deputy attorney general of the Republic of Uzbekistan A. Holmakhmatov, having studied the materials which are available on case, the Constitutional court established:

In the Constitutional court of the Republic of Uzbekistan the lawyer of law firm K appealed request to give official interpretation of part four of article 62 of the Law "About Courts". The different understanding of sense of this regulation allows to draw conclusion on need of its interpretation.

Content of part four of Article 62 is as follows: "Jurymen are called for execution of the obligations in courts according to the procedure of priority no more than for two weeks in year, except cases when prolongation of this term is caused by need to finish consideration of the legal case begun with their participation. For this period it average earnings on place of employment remain".

K. Muzaffarov claims that if the juryman exhausts the specified two weeks of stay in court, then he has no right to participate in another matter the same year and is subject to branch.

According to Article 13 of the Code of penal procedure of the Republic of Uzbekistan criminal cases are considered jointly, and cases on the crimes provided by parts two and third article 15 of the Criminal code - the judge solely.

In case of joint consideration of the case by Trial Court the judge and two jurymen are part of court. The Supreme Court of the Republic of Uzbekistan considers cases in the list of three judges. According to Article 76 of the Code of penal procedure the juryman has no right to participate in criminal proceeding and is subject to branch if:

1) he participates or participated in the same case in quality of the victim, the civil claimant, the civil defendant, the expert, the specialist, the translator, the witness, the witness, the defender, the legal representative of the suspect, the person accused, the defendant or the representative of the victim, the civil claimant, civil defendant earlier;

2) he is relative any of the officials responsible for production for this case, or the other persons listed in Item 1 of this part of Article 76;

3) there are other circumstances raising doubts in its objectivity and impartiality.

The judge, as it is established by part two of the specified Article, cannot be involved in consideration of the case if he participated in production on this case as the investigator, the investigator, the prosecutor, the court clerk earlier.

According to part three of the same Article the judge who was involved in consideration of the case in court of the first, appeal or cassation instance or according to the procedure of supervision cannot participate in consideration of this case after cancellation of sentence, determination (resolution) which is taken out with its participation.

In the analysis of regulations of current laws the Constitutional court proceeds from the following:

1) by part two of article 7 of the Constitution of the Republic of Uzbekistan it is determined that the government in the Republic of Uzbekistan is performed for the benefit of the people and exclusively by the bodies authorized on that by the Constitution of the Republic of Uzbekistan and the legislation accepted on its basis;

2) the part two of article 10 of the Constitution of the Republic of Uzbekistan provides that the organization and procedure for activity of the courts are determined by the law;

3) Article 30 of the Code of penal procedure determines that the judges and jurymen appointed or elected in structure of this court participate in consideration of criminal case;

4) according to part three of Article 13 of the Code of penal procedure when implementing justice jurymen have all rights of the judge; they have the equal rights with the chairman in judicial session in the solution of all questions arising during consideration of the case and adjudgement;

5) Article 76 of the Code of penal procedure establishes number of the circumstances excluding participation in case of the judge (juryman), the prosecutor, the investigator, the investigator and the court session secretary.

Therefore to exercise the right to removal of the judge or the juryman according to the procedure, provided by part five of Article 80 of the Code of penal procedure, it is possible only in the presence of one of the circumstances listed in article 76 of this code.

Establishing the term of stay of jurymen in courts according to the procedure of priority for execution of the obligations, the legislator thereby does not limit their power on implementation of justice on criminal cases. According to part one of article 62 of the Law "About Courts" the juryman is elected for a period of two and a half years.

Based on stated and being guided by Articles 1, of 19, of 25, 26 Laws of the Republic of Uzbekistan "About the Constitutional court of the Republic of Uzbekistan", the Constitutional court decided:

1. Explain that according to part one of article 62 of the Law "About Courts" the term of office of the juryman is determined in two and a half years. According to Article 30 of the Code of penal procedure of the Republic of Uzbekistan the judges and jurymen appointed or elected in structure of this court participate in consideration of criminal case.

2. Note that the Code of penal procedure does not provide participation of the juryman in court more than two weeks in year as the circumstance excluding its participation in production on another criminal case. Therefore, participation of the juryman in court more than two weeks in year cannot be the basis for its branch.

3. For the purpose of ensuring rule of the Constitution and the laws to recommend to the Supreme Court of the Republic of Uzbekistan to study practice of application by courts of part four of article 62 of the Law "About Courts" and to make the corresponding explanations.

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