Reformation and liberalization of judicial-legal system – A basis for further development of the Republic of Uzbekistan

Eurasia News

By B.H. Ruzmetov and M A Khan

After the declaration of independence, Uzbekistan proceeded to formation of democratic and law-governed state. As Uzbekistan fell heir to ideologized judicial-legal system of the previous one, under the general superintendence of the President of the Republic of Uzbekistan tasks on its reformation were set, and it primarily touched upon ensuring true the autonomy and independence of judges.[1]

The grounds of implementing judicial reform were laid down in the constitution of the Republic of Uzbekistan which proclaimed the principle of separation of powers. In accordance with this principle, along with legislative and executive branches of state authority judiciary branch is autonomous and independent. It became necessary to direct the court’s activity to ensuring of law supremacy, social justice, and civic peace and harmony.

Bases for building of judicial power, in accordance with the national Constitution, were set out in Courts Law[2] dated September 2, 1993 which includes major principles of judicial system that meet up-to-date world standards and rules of international law such as, equality of citizens before the law and court, presumption of innocence, adversarial character of the judicial process, right to defense and others.

Article 108 of the Constitution of the Republic of Uzbekistan for the first time allowed for establishment of Constitutional Court Proceedings Institute. Since that time the Constitutional Court of the Republic of Uzbekistan has been considering the cases with a view to constitutionality of legislative and executive acts. So, in order to implement the checks and balances system article 1 of the Law “On Constitutional Court of the Republic of Uzbekistan” included the right of Constitutional Court to question constitutionality of laws and other acts passed by the Oliy Majlis of The Republic of Uzbekistan, decrees of the President of Uzbekistan, governmental and local administration regulations, interstate treaty commitments and others.[3]

Adoption of Criminal Code, Code of Criminal Procedure and Code of Administrative Responsibility in 1994 was a significant step in judicial-legal reforms. These codes reflect the standards which meet the democratic principles of law-governed-state and make them different from previous acts in this sphere. For instance, the Criminal code reviews the system of punishment subject to establishing of criminal responsibility by law which is adequate for the crime committed. Such types of punishment as exile and expulsion have been abolished. Criminal responsibility for crimes against peace and security, as well as for ecological crimes was introduced for the first time. Essential emphasis in the new Criminal Code is place on legal norms which are aimed at protecting the property and establishing responsibility for crimes in the sphere of economy, and at strengthening the responsibility for crimes provoking national enmity and intolerance, and for illegal sale of narcotics and psychotropic substances.

In accordance with Article 17 of the Code of Criminal Procedure of the Republic of Uzbekistan, the judge, prosecutor, investigator and interrogating officer must respect the honor and dignity of persons involved in the case. No one can be subjected to torture, violence, and other cruel or degrading treatment. It is prohibited to behave or render decisions which are degrading, lead to the disclosure of information on the circumstances of personal life, and create threat to health of individual, and also cause unreasonable physical or moral suffering.

Besides, under this Code, the right of defense may be exercised by engaging a counsel in the case from the moment of arrest of person suspected in execution of crime. Legal norms which stipulate the equality of parties in criminal procedure have a high priority. It is evidenced by abolition of supervisory functions of prosecutors and his participation in criminal proceedings as a prosecuting official.

At the moment the country is implementing the concept of profound reformation and liberalization of judicial-legal system as the major component in forming a law-governed state. The courts are liberated from the function of execution of judgments which is not characteristic of them.[4]

Reforming of judicial-legal system accentuates on the specialization of courts. Specialization of criminal, civil, and commercial courts in Uzbekistan is consolidated on the basis of the Decree of the President of Uzbekistan of Republic dated August 14, 2000 “On perfection of judicial-legal system of the Republic of Uzbekistan” which ensured the improvement of quality of considering proceedings and protection of rights and liberties of citizens.

Adoption of new enactment of Courts Law in the month of December 2000 became an important stage in reforming of judicial-legal system.[5] This enactment makes references to international practice in judicial reforms and experience of reforming of judicial-legal system which have been gained in the years of independence. Besides, conditions for further democratization and improvement of activity of courts have been created. For the purposes of ensuring the autonomy of courts, perfection of judicial system and improving the quality and effectiveness of effectuation of justice this Law provides for specialization of courts on the basis of existing courts of general jurisdiction and there were formed territorial courts. Besides, this Law for the first time introduced the appeal proceedings in trial which is aimed to protect the rights and legitimate interests of citizens and to increase the efficiency of legal proceedings.[6]

Also the cassation instance has been reformed: in case of disagreement with the judicial decision after coming into effect, citizens will be able to protect their rights in this instance personally and directly.[7]

Liberalization of criminal and criminal procedure legislation holds a special position in judicial-legal reform in which human rights and interests have always been the subject issue. It should be noted that, fifty amendments have been introduced in the Criminal Code so far since its adoption. A particular consideration should be given to the Law of November 29, 2001, “On amendments to Criminal, Criminal Procedure and Administrative Responsibility Codes of the Republic of Uzbekistan in connection with liberalization of criminal punishment”.[8] Under the Law the classification of crimes has been changed, the list of grave or felonies has been reduced, alternative types of punishment for committed crimes not connected with imprisonment have been introduced, and the Institute for reconciliation of parties has been formed. Furthermore, there has been established a limitation on imprisonment in case of indemnification for property damage caused by economic crime. And confiscation as an additional type of punishment has been excluded from the system of punishment.

More particular result of liberalization of criminal and criminal procedure legislation is that during 2002 – 2006, the number of convicts sentenced to imprisonment has been reduced from 76000 to 34000, that is, nearly half the number.[9]

Judicial-legal reforms resulted in considerable strengthening of guarantees of judicial protection of citizens and measures on maintenance of its availability have been implemented. Expansion of the scope of judicial protection has also been promoted by adoption of Labor, Civil Procedure, Commercial Procedure Codes, Laws “On appeal to courts against actions and decisions violating the rights and freedom of citizens”,[10] “On judicial recourse of citizens”,[11] “On Arbitration Courts”,[12] “On Representative of Oliy Majlis of the Republic Uzbekistan for human rights (Ombudsman)”,[13] and a number of other regulatory legal acts.

The Decree of the President of the Republic of Uzbekistan of June 14, 2005 “On actions of further perfection of legal protection system of entrepreneurial activity” has been an important step in expansion of courts functions.[14] In accordance with this Decree on July 1, 2005 was introduced the judicial order of application of measures of legal effect such as activity termination, confiscation of subject of infringement, application of financial sanctions.

Adoption of the Decree of the President of the Republic of Uzbekistan in 2005 “On abolition of capital punishment in the Republic of Uzbekistan” has become the next important step in liberalization of criminal legislation.[15] This decree includes the norms of excluding the death penalty from the system of criminal punishments and its replacement with lifelong or long-term of imprisonment. Since lifelong imprisonment is a reliable legal tool which provides strict, but fair punishment for gravest crimes, inevitability of responsibility for their commission. The mechanism of automatic relief from criminal liability or from execution of a punishment due to expire of time limitation or from conditional early discharge is not applied to lifelong imprisonment.

The law also stipulates that lifelong imprisonment is established only for intentional homicide under aggravating circumstances or terrorism which caused human fatality or other grave consequences. It indicates that the criminal legislation of Uzbekistan in terms of application of lifelong imprisonment is one of the most liberal ones in the world practice. For comparison: in such countries as Germany and Poland lifelong imprisonment may be prescribed for 5 crimes, in Belgium and Russian Federation for – 6, in Denmark – 9, in Georgia – 11, Sweden – 13, Belarus – 14, Japan and Azerbaijan – 16, Kazakhstan and Korea – 17, France – 18, Netherlands – 19, Moldova – 24 etc.[16]

The powers of courts in providing effective protection of rights of citizens have been considerably expanded in connection with the transfer by public prosecution bodies to courts of right to issue sanction on confinement under guard (establishing “Habeas Corpus” institution) since January 1, 2008. Establishing the institution of “Habeas Corpus” corresponds to articles 19, 25 and 44 of the Constitution of the Republic Uzbekistan, which define the rights of citizens to judicial protection. Thereupon, on July 11, 2007 there was adopted the Law on Amendment to Criminal Procedure Code, as well as the Laws “On courts”[17] and “On Public Prosecution”.[18]

The Law of the Republic of Uzbekistan “On Amendments to some legislative acts regarding improvement of the order of execution of criminal punishment with fine” was adopted in 2008.[19] It provides inevitable responsibility for committed crime, as well as the creation of procedural legal mechanism of compulsory execution of criminal punishment with fine.

According to the experience of developed countries and critical analysis of past period of work on reforming the judicial-legal system it is impossible to succeed in political and economic renewal and modernization of the country without maintenance of further increasing of the role and position of judicial bodies in the government, strengthening their powers, autonomy and independence.

At present measures on further improvement of juridical education and development of legal science, radical improvement of quality of training of personnel able to meet modern requirements, increasing of efficiency of lawmaking and enforcement matters are being developed.

Besides, at the present time in coordination with the Supreme Court and the Supreme Economic Court of Uzbekistan will be approved the program of adoption of up-to-date information-communication technologies in activity of courts. For its realization it is planned to form separate divisions on informatization within the structure of courts.

Moreover, at present there is implemented the practice of undergoing compulsory training and internship in lawyers professional advancement centers under the Ministry of Justice and Supreme Court and Supreme Economic Court for persons newly appointed (elected) as judges. All these measures are aimed at improving the skill level of judicial officers of the Republic of Uzbekistan.

At present, special emphasis is also put on further improvement of juridical education and development of legal science, radical improvement of quality of training of personnel capable to meet modern requirements, and increasing of efficiency of legislative activity and law enforcement.

In Uzbekistan system measures are being carried out on liberalization of judicial-legal system by ensuring equality of procedural rights of conviction and defendant parties, as well as their competitiveness. As it is known, after the adoption of the Law of the Republic of Uzbekistan “On advocacy” on December 27, 1996, the advocacy institute has been holding an important position in solving one of the major tasks which our society is facing – formation of democratic law-governed state and creation of strong civil society.[20] This is why it is impossible to imagine the government policy in accomplishing this task without participation of advocacy institute. But there is still much work to be done in terms of realization of the constitutional norm which guaranteed the rights of citizens to professional legal assistance at any stage of legal proceedings, providing of organizational autonomy of advocacy, its staffing with highly-skilled personnel, strengthening of guarantees of autonomy of lawyers, increasing the authority and prestige of lawyer’s profession.

In order to increase the role of lawyers and further liberalization of judicial-legal system, on May 1, 2008 the President of Republic of Uzbekistan passed a Decree “On measures of further reforming of advocacy institute in the Republic of Uzbekistan” which defines the main directions of further reforming of advocacy institute.[21]

Besides, works have been performed to form a Chamber of Lawyers of the Republic of Uzbekistan on the basis of Association of Lawyers of Uzbekistan based on obligatory membership of all lawyers of the Republic of Uzbekistan. It should be noted, that the Chamber of Lawyers of the Republic of Uzbekistan is a noncommercial organization and forms a unified system of self-management of advocacy, and operates on the basis of the principle of non-interference in the activity of lawyers which is carried out in accordance with the legislation. The main achievement of this Law became the possibility to guarantee the equality of procedural rights of the prosecutor and defendant in criminal procedure, expansion of the rights of suspects and the accused.

It should be noted, that the world community is taking an active part in monitoring the reforms being carried out in the Republic of Uzbekistan. For example, in July of 2012 the Supreme Court of the Republic of Uzbekistan and the UN Development Program launched a joint project “Reform of Civil Justice: effective administrative court proceeding” in realization of which took part the Research Centre under the Supreme Court, Department of execution of judgments, material and financial support of courts’ activity and other organizations. The project will be implemented by the end of 2014. It will be aimed at strengthening of civil courts by introduction of advanced world practice in judicial administration, execution of judgments, and also establishment of cooperation between civil court, judicial department and society.

The project provides work at two levels, trying to connect the top-level decision-making mechanism with courts of the first instance. The special attention is given to introduction of automated process of proceeding (electronic legal proceedings): from filing of a claim to passing of final judgment.

According to experts, in Uzbekistan the problems in justice result from essential paper-work, inconsistent decisions, as well as labor-consuming bureaucratic accountability of judges.[22] As a result, the parties seeking justice face problems with timely resolution of their disputes. In order to guarantee the legal rights and interests of citizens further reform of judicial system is necessary, as well as for effective ensuring of supremacy of law by expansion of the access to justice.

The importance of the reform of justice is conditioned by the fact that more and more people are facing problems with the protection of their rights in civil and criminal legal proceedings (more than 2 million applications in 2011). Moreover, the economic growth of the country contributes to the increase of demand for such government services. As of today in Uzbekistan one judge, on the average has to deal with about 300 cases per month. That is to say, the daily load per each judge is 34 cases. Moreover, the judges spend for paper reporting more than 3 days every month, or 36 days in a year.[23]

But still the limited potential of courts on administration and consideration of such quantity of cases leads to untimely consideration of cases and influences the quality of their consideration.

As the preliminary analysis shows, for resolution of their disputes claimants and respondents visit the first instance court 6-7 times on the average. Namely due to duration of adjudication and final execution of the decision, and also other objective reasons some citizens try to solve their problems out of courts.

Based on the above, through regular judicial reform Uzbekistan will be able to provide legitimate rights and interests of its citizens and effectively support supremacy of law by expansion of access to justice.

It is notable that the process of reforming the judicial-legal is systematic, stage-by-stage and continuous process.

This is evidenced by the Decree of the President of the Republic of Uzbekistan dated August 2, 2012 “On measures of radical improvement of social protection of workers of judicial system” which includes a number of measures on further reforming of judicial-legal system of the Republic for the purpose of strengthening the legal and social guarantees for independent legal proceedings and protection of social status of workers of judicial bodies.[24]

Within the framework of implementation of this program, works are being performed on strengthening of autonomy and social protection of judges by approval of categories for remuneration of judges on single wage rates distribution, and also the amount of monthly increment to official salaries of the judges who have a class rank for special working conditions.

This decree is aimed at maintaining the further increasing of the position and role of judicial bodies in the government, strengthening their powers, and also autonomy and independence. The decree also provides making corresponding amendments to the current legislation regarding newly appointed judges which are required to pass compulsory training and internship in lawyers professional advancement centers under the Ministry of Justice and Supreme Court and Supreme Economic Court.

Thus, modern trends of reforming of judicial-legal system of the Republic of Uzbekistan are logically built, stage-by-stage strategy of deepening of democratic reforms in the country as a whole. It is notable, that in 21 years history in our republic a number of key steps have been undertaken to improve the legislation which could freely compete with the most advanced and developed states of the world the legislation of which have more than a century history.

It is also obvious that the process of perfection of the legislation of Uzbekistan has affected all branches of authority and all spheres of public relations in order to create a high-grade base which guarantees the protection of human rights. Thus specified measures are aimed at strengthening the autonomy and social protection of judges for further increasing of position and role of judicial bodies in the government, strengthen their powers and independence which is aimed to create additional conditions of impartial realization of their powers in protection of rights and legitimate interests of the Republic of Uzbekistan.

Article by: B H Ruzmetov / M A Khan Tashkent, Uzbekistan