CC BY
23Nematov Jurabek,
Associate Professor of the Administrative and Financial Law Department of Tashkent State University of Law Doctor of Sciences in Law, ORCID: 0000-0003-3406-0784 E-mail: jura_0404_uzb@yahoo.com
WOULD THE NEW ADMINISTRATIVE COURT SYSTEM BE MILESTONE TO CHANGE POST-SOVIET ADMINISTRATIVE
LAW IN UZBEKISTAN?
Abstract. Judicial protection against individual and normative acts of the public administration continues to be problematic in Uzbekistan. One central reason for this mischief is the continuing prevalence of Soviet-style ideas and patterns in legal thinking as well as the legal practice. This article describes the problems ofjurisdictions face when trying to overcome their Soviet heritage by developing legal protection in administrative matters, and analyses the strategies for the improvement of this situation. In this regard, it is quite common in post-Soviet countries to think that citizens are allowed to appeal against the administrative penalty that was imposed after disobedience against a certain administrative act, rather than directly appeal to the court against the administrative act prior to an administrative penalty. This is why it is quite difficult to develop administrative justice without changing the misperception in understanding administrative offenses as a part of administrative justice in Uzbekistan. Notably, the recent reforms taking place in Uzbekistan give big hope to develop administrative justice without including administrative offense cases. It is a positive move in the context ofpost-Soviet countries that administrative justice is becoming separatedfrom traditional Soviet administrative offense cases. Relevantly, this paper explores (!) main reforms held on judicial review over administrative acts in today's Uzbekistan, and (2) what are the transformation points of judicial review. Overall, I argue that Soviet thinking on judicial review over administrative acts has a significant change in legislation level under the new regime of Uzbekistan; however, legal reforms are not still accepted by legal practice, doctrine and legal education. Based on this, it should be emphasized that the development of the theory of administrative law in Uzbekistan is important. In particular, the need to maintain the relationship between theory and court practice through constant analysis of court decisions in the field of administrative law, the importance of training legal personnel based on a case study of researching administrative court decisions, the importance of developing substantive administrative law, and developing new areas ofpositive administrative law.
Keywords: soviet-style administrative justice, administrative litigation, administrative procedure, legal education, the Strategy Action 2017-2021, administrative courts, jurisdiction, case study, textual positivism, judge-made law
Introduction
Judicial review over administrative acts in Uzbekistan and other post-Soviet countries has its common history. Until the 1960s, it was mainly refused by the Soviet regime. Later, there were major changes in the law, but legal practice did not change much. The 1977 Constitution of the USSR and the 1987 Law "On the procedure for appealing to the court against unlawful acts by officials that infringe the rights of citizens" played a significant role in introducing judicial review over administrative acts into Soviet law. After the collapse
of the Soviet Union, legal thinking and practice in the field of judicial review over administrative acts have not changed substantially for a long time in many postSoviet countries, as well as in Uzbekistan, which causes problems in putting the right of access to the courts and a fair procedure in court trials of administrative cases into reality. However, under the new regime lead by President Sh.Mirziyoyev, there was significant reform in the legal system as well as in administrative law. Firstly, we will describe the main features of these changes above.
Reforms on administrative law: continuity, changes and problems
Uzbekistan's Constitution and laws guarantee rights and freedoms for citizens and private entrepreneurs in relation to the administration. For instance, Article 44 of the Constitution of Uzbekistan (December 8, 1992) guarantees everybody the right to appeal to courts against administrative acts (right to access the courts) [1].
Uzbekistan has tried to introduce legal reforms in the sphere of administrative justice. Administrative litigation in ordinary courts was based on the Law "On appealing in court against actions and decisions violating human rights and freedoms" (hereinafter, 1995 Law on Appeal)[2] and the former Civil Procedure Code (hereinafter referred to as former CPC) in Uzbekistan. There were many similarities between these laws in the early stages of their adoption.
Uzbekistan's 1995 Law on Appeal contains the general rules and consists of 10 articles that were quite similar to the 1989 Law on Appeal of the USSR. There was a general clause that allowed individuals to appeal to the court against administrative bodies' action without any exception. However, in practice it was quite challenging to appeal to the court in many cases. For example, normative legal acts (regulatory acts of administrative bodies) and inaction of administrative bodies could not be objects of litigation in Uzbekistan, which caused difficulties for individuals in finding remedies for their violated rights.
The Uzbek legal systems did not provide detailed provisions regarding the standards of review. Thus, courts lack a clear understanding of the degree to which they may review fact findings and interpret the law and the conclusions reached by the administrative body. Frequently, courts can hear new facts (de novo), and court procedure is more akin to litigation or a trial. As far as there were no administrative procedural rules on rendering an administrative decision in Uzbekistan, the court hearings were not limited to the facts collected by the administrative body.
The problems analyzed above are mostly rooted in the Soviet past. Yet, there are not only problems but also there are some hopes for change.
The newly elected President of the Uzbekistan, Sh.Mirziyoyev, started to build New Uzbekistan and introduced several administrative law reforms according to the Strategy Action 2017-2021[3]. As a result of this, there was introduced the administrative court system and adopted the Concept of administrative reforms[4].
On June 1, 2017, the Presidential Decree of the Republic of Uzbekistan proposed the formation of administrative courts of the Republic of Karakalpakstan, regions and the city of Tashkent, district (city) administrative courts, as well as the formation of a judicial board on administrative matters of the Supreme Court of the Republic of Uzbekistan, which adjudicates administrative disputes arising from public law relations, as well as cases of administrative offenses [5]. The relevant changes were made to the Constitution of the Republic of Uzbekistan [6], the Law of the Republic of Uzbekistan "On Courts", the Civil Procedure and Economic Procedural Codes of the Republic of Uzbekistan[7], providing for the formation of administrative courts.
In addition, at the beginning of 2018, the Law "On Administrative Procedures" (hereinafter referred to as APL[8]) and the Code of Administrative Litigation of the Republic of Uzbekistan (hereinafter referred to as CAL[9]) were adopted[10], which, without exaggeration, basically meet international standards.
Reforms regarding administrative justice are going to be one of the important ones in the near future also. The Presidential Decrees dated 02.03.2020 No. UP-5953 and dated 24.07.2020 No. UP-6034 announced to abolish administrative offense case litigation from the administrative courts and handle administrative offense case's litigation to the criminal courts[11].
Since the Soviet period, the administrative offense system has been settled as a main part of administrative law. However, if we look from the point of Western countries, we see that administrative justice is not a system centered on the punishment of misconduct, but it is about abolishing unlawful administrative acts.
Even today, some Uzbek scholars equate the administrative offense system and administrative justice or at least argue that the administrative offense system is one part of administrative law [12;13;14].
In this regard, it is quite common in post-Soviet countries to think that citizens are allowed to appeal against the administrative penalty that was imposed after disobedience against a particular administrative act, rather than directly appeal to the court against the administrative act prior to an administrative penalty. This is why it is quite difficult to develop administrative justice without changing the misperception in understanding administrative offenses as a part of administrative justice in Uzbekistan.
Notably, the recent reforms taking place in Uzbekistan give big hope to develop administrative justice without including administrative offense cases. It
is a positive move in the context of post-Soviet countries that administrative justice is becoming separated from traditional Soviet administrative offense cases[15].
The above reforms and legislative changes created the basis for a major breakthrough in administrative law in the Republic of Uzbekistan. Many scientific discussions and proposals on the development of administrative law have not yet seen their practical implementation. The legislative reforms carried out over a short period of time brought these long-awaited ideas to life. However, it must be borne in mind that with the adoption of the relevant laws, it is impossible to achieve a major breakthrough in the development of modern administrative law in the Republic of Uzbekistan. Legal doctrine, practice and education also should accept these changes.
Here are analyses from judicial practice where APL is used to some extend.
Perception of new administrative law by traditional legal thinking
We can say that the application of the APL as a new law for post-soviet judicial practice is one of the most actual legal issues of today. Research shows that the newly established administrative courts of Uzbekistan, conditionally speaking, have been applying the APL in their practice in three ways. The first category of courts - actively, the second category - cautiously, and the third category - do not apply the norms of the APL at all.
The first category of the administrative courts, which actively apply the APL in their judicial practice and relevant court documents, used Articles 1, 4, 5, 9, 24, 59, 60 of the Law to justify their decisions. In particular, it was noted that the failure of the governor to ensure the participation of the interested person in the process of reconsideration and cancellation of the prosecutor's protest against the decision of the governor violated Article 9 of the Law "On the principle of access to hearing". This, in turn, was a serious violation of the rights of the interested party, and, as a result, the administrative court found the relevant decision invalid.
The second category is limited to referring to certain concepts in Article 4 of the APL, including the administrative body, administrative-legal activities, etc. Therefore, we can say that such administrative courts are cautious in the practical application of the APL. Indeed, they prefer to apply the APL to a limited extent, without denying that the APL can be applied in judicial practice.
The third category of the administrative courts for some reasons, are not in a hurry to apply the APL in judicial practice.
This outcome leads us to the analyses of Kühn and gives weight to the idea of path dependence as a reason for the present problems. In Uzbekistan, courts are still formalists, and it is still true that "judges employ arguments of the plain meaning of a statutory text and present their analysis as a sort of inevitable logical deduction from this text." The reason for that is that the judges are bound by statutes (for example, Article 15 CAL), and they must observe enacted laws[16]. Courts do not consider their role as an entity to ensure the right to access to the courts and guarantee constitutional rights and freedom. In other words, courts in Uzbekistan are not conscious of protecting citizens' constitutional rights and freedoms. It seems that it is not the court's function, but rather, it is the procuracy's function to protect citizens' rights and freedoms provided by the Constitution and statutes.
In this regard, Kühn argues that even in socialist law, it was accepted that judge-made law and any supplementary interpretations done by judges were assumed to be harmful or, at best, suspicious[17]. One of the reasons for this problem comes from a lack of sufficient knowledge of legal professionals, scarcity of comprehensive and fundamental research at law schools, an absence of legal textbooks and updated casebooks, minimal access to court practice, and insufficiency of legal training on administrative litigation and administrative law in general.
Nevertheless, it should not lead the reader to think that the government of Uzbekistan is not conscious of those ongoing problems. The government is trying to introduce some legal reforms that are giving hope for change in the near future. The government became more and more conscious of these sets of problems. In this context, recent decrees by newly elected president Mirziyoyev are not surprising. These decrees aim to improve legal education further and introduce new methods of analytical legal education and case study[18].
Conclusion
This article discussed the legal problems of administrative litigation in modern Uzbekistan. In conclusion, it should be mentioned that administrative litigation remains one of the most problematic issues of administrative law. It should also be concluded that establishing procedural rules is not enough to solve the problems regarding administrative litigation in modern Uzbekistan [19].
First of all, legal education should be reformed in a way that favors protecting the rights and freedoms of citizens and legal entities. Further emphasis should be given to analytical case law study, based on legal argumentation and statutory interpretation. Through
the analysis of this article, it is hoped that changes in legislation would guarantee timely and fair access to justice.
Current Uzbekistan's government is doing much in that regard. There are many ongoing reforms in the sphere of administrative law and policy. More and more legal guarantees are being given to business activities. For example, the recently adopted Law "On administrative procedure" and Code on Administrative litigation of Uzbekistan, the future liquidation of the trial of administrative offense cases from the jurisdiction of the administrative courts by the end of 2020 initiated by the government gives hope for the future development of administrative law in Uzbekistan.
Based on this, it should be emphasized that the development of the theory of administrative law in Uzbekistan is important. In particular, the need to maintain the relationship between theory and court practice through constant analysis of court decisions in
the field of administrative law, the importance of training legal personnel based on a case study of researching administrative court decisions, the importance of developing substantive administrative law, and developing new areas of positive administrative law.
In that sense, not only the legislature and practicing lawyers but also administrative law scholars should be more active in establishing and developing theories and educating law school students in the spirit of analytical legal thinking, legal argumentation and interpretation of legislative acts. Last but not least, the role of international donor organizations and partner universities is enormous in this process. Conducting joint comparative research, publishing textbooks, organizing conferences, workshops and trainings can facilitate interactive dialog, inspire all concerned actors and eventually lead to the overall improvement of access to justice and development of business activities and entrepreneurship, in Uzbekistan.
References:
1. The Constitution of the Republic of Uzbekistan, Article 44. Available at: https://gov.uz/en/constitution/#a1836 (accessed01.09.2020).
2. Law of the Republic of Uzbekistan "On appealing in court against actions and decisions violating human rights and freedoms", August 30, 1995, № 108-I.
3. Decree of the President of the Republic of Uzbekistan dated 07.02.2017, No. UP-4947 "On the Strategy for Action for the Further Development of the Republic of Uzbekistan".
4. Decree of the President of the Republic of Uzbekistan dated 08.09.2017 No. UP-5185 "On approval of the concept of administrative reform in the Republic of Uzbekistan" (National Database of Legislation, 12/11/2019, No. 06/19/5892/4134).
5. Decree of the President of the Republic of Uzbekistan dated 21.02.2017 No. UP-4966 "On measures fundamental improve the structure and increase the efficiency of the judicial system of the Republic of Uzbekistan".
6. Law of the Republic of Uzbekistan dated 06.04.2017 No. ZRU-426 "On Amendments and Additions to the Constitution of the Republic of Uzbekistan".
7. Law of the Republic of Uzbekistan dated 12.04.2017 No. ZRU-428 "On Amendments and Additions to the Law of the Republic of Uzbekistan "On Courts", Civil Procedure and Economic Procedural Codes of the Republic of Uzbekistan".
8. Law of the Republic of Uzbekistan dated 08.01.2018 No. ZRU-457 "On Administrative Procedures", enter into force from 10.01.2019.
9. Law of the Republic of Uzbekistan dated 25.01.2018 No. ZRU-462 "On Approval of the Administrative Litigation Code of the Republic of Uzbekistan", enter into force from 01.04.2018.
10. Javier Barnes, Towards a third generation of administrative procedure, 2010, Susan Rose-Ackerman, Peter L.Lindseth. Comparative administrative law: an introduction, Susan Rose-Ackerman, Peter L.Lindseth. Edward Elgar. Comparative Administrative Law. 2010. P. 342-343.
11. Decree of the President of the Republic of Uzbekistan dated 02.03.2020 No. UP-5953 "On the State Program for the Implementation of the Action Strategy for the five priority areas for the development of the Republic of Uzbekistan in 2017 - 2021 in the Year of the Development of Science, Education and the Digital Economy" (National Database of Legislation, March 3, 2020, No. 06/20/5953/0246).
1. Decree of the President of the Republic of Uzbekistan dated 24.07.2020 No. UP-6034 "On additional measures to further improve the activities of the courts and increase the efficiency of justice" (National Database of Legislation, July 24, 2020, No. 06/20/6034/1103). [In Russian]
12. Alimov X.R., Solovyova L.I. Administrative law of the Republic of Uzbekistan, Adolat, 1998. P. 214.
13. Khojiev, T. Administrative Law, 2006. P. 536.
14. Hojiyev E.T. Administrative law. Textbook for professional colleges, Science, 2010. P. 204.
15. The Code of Administrative Litigation of the Republic of Uzbekistan, Article 46
16. Zdenek K. The judiciary in Central and Eastern Europe: mechanical jurisprudence in transformation?, Law in Eastern Europe 61. 2011. P. 118.
17. Zdenek K. Worlds Apart: Western and Central European Judicial Culture at the Onset of the European Enlargement, The American Journal of Comparative Law, Vol. 52.No. 3 (2004). P. 542-543.
18. Resolution of the President of the Republic of Uzbekistan dated 28.04.2017 No. PP-2932 "On measures to fundamental improve the system and increase the efficiency of personnel training at the Tashkent State University of Law"; Decree of the President of the Republic of Uzbekistan dated April 29, 2020 No. UP-5987 "On additional measures to radically improve legal education and science in the Republic of Uzbekistan" (National Database of Legislation, April 30, 2020, No. 06/20/5987/0521).
19. Khvan L.B. Administrative justice in the modern legal system of the Republic of Uzbekistan: posing the question. Tashkent, Abu Matbuot-Konsalt, 2011. P. 67.
