Judicial reforms of Uzbekistan - a new era, new approaches.
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2016-2021 judiciary reforms in Uzbekistan, being carried out in systematic and consistent manner, have been implemented in order to fully realize the principle “For human dignity”, which has become a priority idea of the development of the new Uzbekistan; to endure the reliable protection of human rights and freedoms; and to establish the judiciary, which is fully capable of administering justice in the society. As a result of the reforms, a completely new stage in the development of the judicial system of Uzbekistan has begun, and justice has taken on a new look, both in form and substance.
The legal guarantees for the independence of judges, which are fully in line with international standards and the best practices of developed democracies, have been established, in particular institutional reforms have been implemented by the way of establishing an open and transparent system of selection and appointment of judges.
In recent years, large-scale reforms are being carried out in the judicial sphere. In particular, with an aim to ensure a unified judicial practice, the Supreme Court and the Supreme Economic Court were merged into a single supreme body of judicial power - the Supreme Court of the Republic of Uzbekistan. For the first time, the Judicial Board for Administrative Cases of the Supreme Court and administrative courts were established in the regions.
Particularly, for the first time in the history of the judicial system of the state, the constitutional body of the judicial community – the Supreme Judicial Council of the Republic of Uzbekistan was established. It has been defined that the Council carries out its activities only within the framework of the law, independently from other state bodies, organizations and officials. No one is allowed to interfere in the activities of the Council and this interference is subject to liability under the law.
The Council shall adhere to the principle of equality and non-discrimination while selecting and appointing candidates for judicial positions, regardless of sex, race, nationality, language, religion, social background and beliefs of candidates. The powers of the Council on selection and appointment of judges have also been expanded. The right to appoint judges of regional and Tashkent city courts, chairmen of inter-district, district, city courts, their deputies as well as judges of Military Court and chairmen of territorial military courts, previously being exercised by the President of the Republic of Uzbekistan, has been transferred to the Supreme Judicial Council.
In 2020, for the first time, the practice of announcing the competition for vacant judicial positions through mass media was introduced, and a completely new procedure for testing the knowledge of candidates - an electronic question program was launched. Thereby, the interview process of candidates to judicial positions has become transparent. The whole process was allowed to be monitored online and offline. Such a new process was created as a result of researching and considering similar experience of foreign countries, in particular, France, Germany, Turkey, Portugal and many more.
Moreover, the UN Resident Coordinator in Uzbekistan – Helena Frazer has also valued administrative and judicial reforms among all the work being fulfilled according to the Strategy of Actions on Five Priority Areas of Development of Uzbekistan for 2017-2021.
The task to maintain judicial activities by providing logistical and financial support to courts have been transferred from the Ministry of Justice to the Department of Court Maintenance under the Supreme Court of the Republic of Uzbekistan. In addition, with an aim to further strengthen the financial independence of judiciary and to create necessary facilities for the activities of courts, a separate Fund for the Development of Judicial Bodies was established.
For the first time in history, the new version of the Law “On the Constitutional Court of the Republic of Uzbekistan” has introduced the principle of irreplaceability of a judge of the Constitutional Court, which made it clear that a judge may not be replaced during his/her term of judicial tenure, and his/her powers may not be terminated in any manner not indicated by the law.
Moreover, the system of preparing the candidates for judicial positions, re-training of judges and court staff has been radically improved by the way of establishing the Supreme School of Judges under the Supreme Judicial Council. Over the past period, 793 judges and 391 court staff have undergone training at the Supreme School of Judges, 207 new candidates have been prepared for judicial positions, and 30 acting judges have participated in special leadership courses. While, over 2019-2021 academic years, in total, 132 students graduated from the preparation courses for judicial position, more than 90 percent of them have already been appointed to hold judicial office.
With the initiative of the President, a new structure has been established within the School of Judges - the Department of Human Rights and International Law. One of the main tasks of the department is to increase the knowledge and skills of current and future judges in the field of human rights by creating training modules that meet international standards. The department has already started cooperation with international organizations and foreign experts in organization of trainings, seminars and workshops. Besides this, in order to increase further the effectiveness of these courses, the work is being carried out on formation of curricula on international law and human rights, in collaboration with experts from the International Commission of Lawyers and the UN Office of the High Commissioner for Human Rights in Central Asia.
It should be noted that the establishment of the Supreme School is being highly valued by experts of the most influential international organizations as a very important product of the ongoing judicial reforms in Uzbekistan in recent years. In particular, the UN Special Rapporteur on the Independence of Judges and Advocates - Diego Garcia-Sayan noted that the opportunity of independent training of judges and court staff is an important indicator of the maturity of the judicial system of Uzbekistan. He also expressed the view that the establishment of the School, specifically under the auspices of the Supreme Judicial Council, serves as a guarantee of achieving real independence of judges. Besides this, he also valued the fact that the educational process in the School is being organized by inclusion of practical learning and professional skills courses.
Resident Representative of the United Nation`s Development Program in Uzbekistan – Matilda Dimovska and Head of the European Union Delegation in Uzbekistan – Charlotte Adrian also opined that the establishment of the School is an indicator that the training system of judges meets international standards.
On January 18, 2021, for the first time in the history of the judicial system of Uzbekistan, the Club of Judges was established, whose members perform their duties on a public basis. The main purpose of creation of the Club of Judges is to provide a dialogue platform for judges that will help to improve their knowledge and professional skills. In the present moment, the club unites judges, who are able to administer justice in the society, to exchange views on various topics, and most importantly, to find solutions by discussing some of the problems encountered in judicial practice among judges.
The following reforms have been implemented to ensure the inviolability and true independence of judges.
Law of the Republic of Uzbekistan No. ZRU-717 of September 20, 2021 fully harmonized the composition of the Supreme Judicial Council according to international standards and abolished the norm that the composition of the Council is to be approved by representatives of law enforcement agencies.
It has also been specified by the Law that the Chairman of the Council has a right to submit a claim to the prosecutor`s office in cases of violation of the inviolability of judges and interference in the administration of justice. Such claim shall be considered within one month period and the rendered decision about initiation of criminal proceedings or refusal to do so shall be made only by the Prosecutor General`s Office of the Republic of Uzbekistan.
In order to further strengthen the guarantees of the inviolability of judges, a Judicial Inspectorate for the Protection of Judges’ Inviolability and Prevention of Corruption has been established within the Supreme Judicial Council. The tasks of the Inspectorate include taking measures to detect corruption tendencies among judges, deal with such issues and take measures in order to prevent any further corruption cases. In addition, the principle of the inviolability of judges was strengthened by adopting the rule that in case of detention of a judge as a suspect of committing a criminal offense, the Council shall be notified of such fact within three hours by providing all documents and evidence serving as a ground for detention.
Besides this, with an aim to increase the image of prestige of the judiciary and form highly qualified judges, the terms of judicial tenure have also been revised. In accordance with international principles and standards, a new procedure has been introduced for the appointment (election) of judges for the initial five years, the next ten years and afterwards, indefinitely. This rule is in full compliance with the United Nation`s Basic Principles on the Independence of the Judiciary, which, in turn, contains a principle that a judge shall have a guaranteed tenure until a mandatory retirement age or the expiry of their term of office. According to the current legislation, while the decision is made in determining the suitability of a candidate for the post of judge for the next ten years and then an indefinite period, many factors are taken into account, such as his integrity, honesty, impartiality, fairness and competence during the judicial career. As of today, among acting 1287 judges in Uzbekistan, 568 have been appointed for the initial tenure, 663 – for the next ten-year tenure, and 56 – for the indefinite period of time.
Minimum age requirement for candidates for the post of judge has also been revised and increased. Prior to the new reforms, a person under the age of thirty could be appointed to judicial position, but now the minimum age requirement has been set as thirty-five. Thus, only a citizen of the Republic of Uzbekistan, older than thirty-five, with a high legal education and at least seven years of experience in legal sphere can be appointed as judge of inter-district, district (city) or regional military courts. This change was introduced due to the fact that according to the analysis of the judicial practice, most of the shortcomings and mistakes made by judges, were made by those judges appointed for the initial tenure and younger than thirty-five years old. This demonstrated that previously established age census does not meet the basic criteria for the selection of judges to be appointed for the first time contained in the Law of the Republic of Uzbekistan “On Supreme Judicial Council”. In particular, they were found to lack sufficient life experience and ability to make fair and lawful decisions. The same could be noticed from the experience of foreign countries. Developed states have set much higher requirements towards the age limit of judges. For example, although there is no formal age-limit requirement found in legislation of the United States or France, the other requirements for candidates to judicial positions, such as minimum work experience, make it clear that only those older than 40-45 years old can be appointed for the initial tenure. The same is true for the United Kingdom, as there is a requirement for candidates to possess more than 10-20 years of legal experience as independent lawyers, only candidates older than 35-45 years old may be appointed for the position of a judge.
As the age census for judges has been increased, the minimum age limit for people`s assessors has also been set as 35 years old.
The law also stipulates that the maximum age for judges of the Supreme Court is seventy, and for judges of other courts is sixty-five, which can be extended by the President of the Republic of Uzbekistan and the Supreme Judicial Council to five years, respectively.
In order to enhance the immunity of judges, it is permitted to summon judges in any form for questioning by law enforcement agencies as witnesses or suspects only with the consent of the relevant qualification boards. In addition, the Chairman of the Supreme Judicial Council has also acquired a duty to submit a report to the President of the Republic of Uzbekistan on the factors hindering the administration of justice as well as the state of actions and results of the work carried out in the system against corruption.
From September 1, 2017, it has been defined that judges and court staff as well as employees of the Department are to be paid extra and monthly bonuses, also receive help with rent and expenses that they incur while performing their duties. All these expenditures are to be covered by the State Budget of the Republic of Uzbekistan. In addition, from 2021, the monthly salaries of judges and court staff have almost tripled.
The other change in the system occurred in January 1, 2021, the practice of “considering cases in the order of supervision” has been completely abandoned. This has put an end to undesirable interference in the judicial work and prevented further influence to the judges of lower courts by overturning their decisions or re-issuing new decision. While this procedure allowed to ensure the independence of judges, which is considered by the international community as a crucial principle in the judicial system, it also served to prevent unjustified increase in the workload in the courts, prolongation of court proceedings, as well as corruption.
With an aim to prevent unjust prolonged court litigation, the principle of “one court - one instance” has been introduced. According to it, the cases considered by the courts of first instance can be reviewed only by the regional courts as an appellation instance, the decision of regional courts – by the Supreme Court as a cassation instance, and cassation decision – only on the basis of the protest submitted by the Chairman of the Supreme Court, the Prosecutor General or their deputies – repeatedly by the Supreme Court itself. This has completely changed the situation, where the case considered by one court was considered by the same court as an appellate instance. The following court statistics is worth mentioning: regional courts used to exercise the power to consider cases in 3 instances (first, appellate and cassation). Only in 2019, about 13,000 cases considered by the same regional court of first and appellate (cassation) instance were amended or annulled by the Supreme Court. Hence, in order to improve the quality and stability of court decisions, to establish clear boundaries of the powers of district (city) and regional courts and the Supreme Court, it was set that district (city) courts can consider the cases only in the first instance, regional courts – appeal, and finally, Supreme Court – cassation.
A number of measures to reform the criminal procedure have also been taken in order to further strengthen the protection of the rights and freedoms of citizens by courts.
In particular, the term of imprisonment has been abolished, the period of detention of suspects has been reduced from 72 to 48 hours, the maximum term of detention and house arrest, as well as the maximum length of preliminary investigation in criminal cases has been reduced from 1 year to 7 months. The procedure of demanding a re-investigation of the criminal case was abolished.
As part of the further expansion of the “Habeas Corpus”, the powers of prosecutors to sanction investigative actions, such as seizing and exhuming mail and telegrams, were transferred to the courts, and courts were empowered to take alternative precautionary measures in the event of refusal of detention or house arrest.
Criminal liability has been established for falsifying evidence by misrepresenting the facts of the case and perjury in order to strengthen the guarantees of the rights and freedoms of citizens in judicial proceedings, to prevent the inclusion of false information and other distorted facts in documents or items that lead to illegal detention, arrest, criminal prosecution or conviction, coercion or false testimony. The use of testimony of a witness, victim, suspect, accused, defendant, expert opinion, material evidence, audio and video recordings and other materials obtained in violation of procedural law as evidence was strictly prohibited. As a result of this reforms, the cases of obtaining evidence with employing pressure has decreased. The practice of relying on evidence that has been thoroughly examined and confirmed only in the course of a judicial investigation has been introduced in court proceedings.
The adoption of the Law of the Republic of Uzbekistan “On protection of victims, witnesses and other participants in criminal proceedings” from 14 January 2019 established legal guarantees for the protection of life, health and property of victims, witnesses and other participants in criminal proceedings. It should be noted that Article 270 of the Criminal Procedure Code of the Republic of Uzbekistan sets out general rules for ensuring the safety of participants in criminal proceedings, but does not specify the types of security measures to be applied and the procedure for their application. The significance of this Law is that it contains a system of measures to be taken in the event of a threat to life, health and property of victims, witnesses and other participants in criminal proceedings.
At the stage of appointing criminal cases for trial, the procedure for making decisions on the case with the participation of the of both parties by guaranteeing the equal involvement of both sides has been established. In addition, the first hearing stage has been introduced, which allows prompt identification and elimination of the factors that hinder the consideration of the criminal case. Previously, the judge used to make decisions on the suspension, termination of the proceedings or referral of the case to the prosecutor solely, but now such issues are being considered in the court room with the involvement of all parties. Thus, consideration of parties` motion to dismiss the unjustified evidence at the initial stage increases the procedural powers of the defense attorneys.
Reforms directed at protect the rights of lawyers and various segments of the population.
The President of the Republic of Uzbekistan adopted the Decree “On measures to radically increase the efficiency of advocacy and expand the independence of lawyers” in order to further improve the adversarial principle in the courts and to raise the level of protection of the rights and freedoms of citizens. The Decree stipulates that the draft laws and regulations concerning the activities of courts and advocates shall be agreed with the Chamber of Advocates of Uzbekistan, and its chairman has the right to express his opinion by participating in the discussion of draft laws in parliament. The decree also obliges the Chamber of Advocates to introduce mechanisms to automatically appoint an advocate to provide legal assistance to a suspect, accused or defendant, at the expense of state budget. It was also determined that this process shall be organized in a way that it is transparent and free from any involvement from third parties.
The court stages with a mandatory participation of defense attorneys have also been extended to include the stage, when the decision is made concerning pre-trial detention or house arrest as a precautionary measure in the case of persons suspected or accused of committing a serious crime, extension of the term of house arrest, or making plea agreement. The law also stipulates mandatory video recording of the process of waiving a right to a lawyer. If there are grounds to involve a person in a criminal case as a suspect or accused, it is prohibited to interrogate him as a witness or to take any written or oral testimony from him until the person has been explained his procedural rights.
As part of the implementation of the Strategy of Actions on Five Priority Areas of Development of the Republic of Uzbekistan, a number of laws guaranteeing the social protection and equality of persons with disabilities have been adopted. The Law “On the rights of persons with disabilities”, adopted on 15 October 2020, is the main legislation defining the rights of such persons.
Taking into account the importance of capacity building and professional development of judges in the field of judicial protection of the rights of persons with disabilities and the need for effective use of international instruments of professional training in this process, the Supreme School of Judges, in cooperation with the HELP program (Human Rights Education for Legal Professionals) developed an online course titled “Rights of Persons with Disabilities” in a way of incorporating international principles into legal context.
This online course aims to increase the knowledge and skills of Uzbek judges and court staff regarding international norms and standards applied by the Council of Europe, and ultimately, to effectively protect the rights of persons with disabilities through the application of these standards in Uzbek judicial practice.
In short, the large-scale judicial reforms carried out in recent years are based on the implementation of the ideas of justice and humanity, which are crucial for the development of the state and society, ensuring reliable protection of the rights and legitimate interests of citizens, increasing public confidence in justice and ultimately, reaching the rule of law in the society.
PhD in Law