ts ul le gal re po rt

TSUL LEGAL REPORTVOLUME 2

TSUL LEGAL REPORT IS AN INTERNET WEBSITE, AN

INTERNATIONAL ELECTRONIC SCIENTIFIC JOURNAL. THE

MEDIA WILL BE PUBLISHED ONLY IN ENGLISH.

TSUL Legal Report Volume 2, Issue 1 (2021) E-ISSN: 2181-1024

3

Head of the Editorial Board

Khakimov Rahim Rasuljonovich – Rector of the Tashkent State

University of Law, Doctor of Law, Professor

Members of the Editorial Board

Salaev Nodirbek Saparbayevich – Deputy Rector on Scientific Work and

Innovation of Tashkent State University of Law, Doctor of Law, Professor

Rustambekov Islambek Rustambekovich – Deputy Rector on Academic

Affairs of Tashkent State University of Law, Doctor of Law, Professor

Nematov Jasur Aminjonovich – Professor of the Tashkent branch of the

Russian University of Economics named after GV Plekhanov

Latipov Samir Ildusovich – Director of the Center for Legal Initiatives and

Innovations of the Tashkent State University of Law

Kurbanov Maruf Mamadaminovich – Head of Criminalists and Forensic

Examination Department of Tashkent State University of Law, Doctor of

Philosophy in Law

Narziev Otabek Sadiyevich – Head of International Private Law

Department of Tashkent State University of Law, Doctor of Philosophy in

Law


4

Khodzhaev Shakhzhakhon Akmalzhon ugli – Head of Intellectual

Property Department of Tashkent State University of Law, Doctor of

Philosophy in Law

Uzakova Gozal Sharipovna – Head of Environmental Law Department of

Tashkent State University of Law, Doctor of Philosophy in Law

Musaev Bekzod Tursunboyevich – Head of the Constitutional Law

Department of Tashkent State University of Law, Doctor of Philosophy in

Law

Gafurova Nozimakhon Eldarovna – Head of the Department of

International Law and Human Rights of the Tashkent State University of

Law, Doctor of Law

Nematov Jurabek Nematulloyevich – Associate Professor of

Administrative and Financial Law Department of Tashkent State University

of Law, Doctor of Law

Yakubova Iroda Baxramovna – Associate Professor of Intellectual

Property Department of Tashkent State University of Law, Doctor of

Philosophy in Law

Abzalova Khurshida Mirziyatovna – Associate Professor of Department

of Criminal Law, Criminology and Anti-corruption, Doctor of Law


5

Akhmedova Guzalkhon Utkurovna – Associate Professor of

Criminalistics and Forensic Examination Department of Tashkent State

University of Law, Doctor of Law

ISSN: 2181-1024. Certificate: No. 1342

Contacts

Editorial office address: Tashkent, st. Sayilgoh, 35. Index 100047.

Principal Contact

Tel.: (+998 71) 233-66-36

Fax: (+99871) 233-37-48

E-mail: [email protected]

© 2020. TSUL – Tashkent State University of Law. All rights reserved.

mailto:[email protected]


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CONTENTS

12.00.01 – THEORY AND HISTORY OF STATE AND LAW.

HISTORY OF LAW DOCTRINES

Sodikov Akmal – Types of information in law-making

process…………………………………………………………………………...8

Otabek Gulomjonovich – History and jurisprudence…............................23

12.00.02 – CONSTITUTIONAL LAW. ADMINISTRATIVE LAW.

FINANCE AND CUSTOMS LAW

Saydullo Abdukakhar – Attention to child rights in Uzbekistan and their

legal protection under national legislation.................................................33

Nematov Jurabek – Recent reforms and new administrative court system

in Uzbekistan: case study of implementation of new

laws...........................................................................................................43

Xabibullayev Azizillo – Origins of public control in Uzbekistan and the

problems of its development.....................................................................64

Dusmukhamedova Nargiza – Some aspects of judicial protection of

children's rights in Uzbekistan (theory and practice).................................69

Mukhammadjonova Mokhibonu – Development of a normative legal act

as a source of law in Uzbekistan...............................................................81

12.00.03 – CIVIL LAW. EMPLOYING LAW. FAMILY RIGHT.

INTERNATIONAL PRIVATE LAW

Jurayeva Muslima – Legal entities as a subject of private international

law……………...........................................................................................87

Yakubova Madinabonu – Application of alternative methods of

investment dispute resolution in the Republic of Uzbekistan....................94


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12.00.04 – CIVIL PROCEDURAL LAW. ECONOMIC PROCEDURAL LAW.

ARBITRATION PROCESS AND MEDIATION.

Khudoynazarov Dadakhon – The implementation of modern information

and communication technologies in the activities of courts in the action

strategy development of our country: results and prospects………...….101

12.00.05 – LABOUR LAW. LAW OF SOCIAL MAINTENANCE

Baybekova Zulfiya – The rights of judicial protection in the system of

labor rights of employees ………………….………………………….........109

Soyipov Khumoyun – Concept and purposes of human resource

management in the aspect of labor law………………………..................117

Urinboyeva Mukhlisa – Experience in the elimination of child labor in

Uzbekistan: problems and achievements……….…............................…126

12.00.08 – CRIMINAL LAW. CRIMINOLOGY.

CRIMINAL-EXECUTIVE LAW

Bokiyev Jakhongir – Criminal liability of minors in some developed

countries and implementation of advanced experience in this field to

national legislation..….............................................................................133

Salokhova Sarvinoz qizi – Peculiarities of the legal status of imprisoned

minors…..............................................................................................….142

12.00.09 ‒ CRIMINAL PROCESS. CRIMINALISTICS. OPERATIVE-

SEARCH LAW, FORENSIC EXPERTISE

Mavlanov Kamoliddin – Procedural status of the suspect in criminal

proceedings....................................................................................…….150


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12.00.01 – Theory and history of state and law.

History of law doctrines

TYPES OF INFORMATION IN LAW-MAKING PROCESS

UDK: 34 (092) (575.1)

ORCID: 0000-0001-6453-1327

Sodikov Akmal Shavkat ugli,

Independent Researcher

Tashkent State University of Law;

e-mail: [email protected]

A R T I C LE

I N F O

A B S T R A C T

Keywords:

law-making, legal

information,

information support,

normative legal act,

informational and

analytical materials.

This article analyzes the concepts of

“information,” “information support” associated with

the process of law making. The normative legal

acts of the Republic of Uzbekistan and the opinions

of scientists are discussed, author’s definitions for

the notions have been given. As part of the study,

the normative legal acts have been studied in

detail. In addition to legal research, the author

developed scientifically proved definitions of

several legal terms such as “Information for law-


9

making,” “Legal information” and “Informational

support of law-making activity.” Information

principles and classification criteria have been

projected by the author. By analyzing the literature

on law making, the author developed the

classification of information submitted to the

primary and secondary legislators. Approaching the

issue from a theoretical and legal point of view, it

should be noted that the classification issue of

information provided for law-making activities

based on appropriate criteria has been sufficiently

studied in this paper.

INTRODUCTION

Today, modern society is

inextricably linked with the level of

information availability at its development

stage. The process of law-making cannot

be imagined without availability and

accessibility of information as well. For

Uzbekistan, which is on the way to

building a democratic society, improving

the quality of laws, of course, requires

the quality, objectivity, accuracy, and

scientific validity of the information. At

the same time, the types of information

provided by special entities, their

classification on the basis of certain

criteria are not specified in the legislation

of our country. In addition, the lack of

scientific research on the sorts of

information in law-making activities can

lead to some misunderstandings.

Moreover, if we focus on the level of law-

making process productivity in the

country, during 2008‒2017 in

Uzbekistan, more than 8 thousand

normative legal acts were adopted.

However, half of them were

subsequently canceled. Likewise, during

2017‒2018, more than 900 normative

legal acts were partially or completely

canceled [1]. It can be concluded that the

main factor of cancellation of newly

adopted normative legal acts is the

provision of information and its quality.

These figures show that the

country’s law-making activity needs a

completely different approach to the

national legislation than the one that was


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used earlier. In addition, the current

Uzbek legislation does not require the

definition, classification of information.

Such as the Regulations of both

Chambers of Parliament do not include

the above mentioned definition

classification of information supplied for

law-making process.

This paper is dedicated to

examine issues of supporting the law-

making process with quality, required,

and principal information submitted to the

national primary and secondary

legislator.

Literature review. The issue has

not been researched in a broad range.

However, some aspects of the law-

making process were studied by some

domestic scientists and lawyers.

In particular, Kh.S. Khayitov

studied, in his work, issues of legal and

linguistic expertise in the legislative

process and support with linguistic

expertise information [2] O.Z. Shodikulov

investigated the issues of improving legal

writing rules to increase the efficiency of

law-making [3].

In his research, B. Abdullayev also

discussed the improvement problems of

the legal expertise information provision

of legislative acts [4]. Besides,

P.A. Rustamov investigated scientific

and informational support of law-making

activity [5]. Apart from that, analysis of

legal gaps information determination and

legal mechanism improvement issues of

the supplement gaps in normative legal

acts by the law-making subjects were

studied by Sh.A. Saydullayev [6].

In turn, I.T. Tulteyev investigated

the issues of law-making forecasting and

providing law-making with projection and

prediction information [7]. However,

several domestic scholars analyzed the

types of information used in law-making

process.

Nevertheless, in the works of

some Russian scientists there is a

classification of information, such as

I.Y. Pavlov [8], R.F. Azizov [9]. Their

main focus was on classification of

information in accordance with the legal

aspects of legislation, for example, legal

and non-legal information provided for

the law-making process. In particular,

A.S. Proskurin [10] followed the same

method of information classification in

law making process.

In foreign countries, several

scientists studied this issue. In particular,

Jasmin Riedl [11] discusses the pace of

legislative activeness and accessibility of

parliamentary archives for German

nation and the world.

Elizabeth Brophy [12] studies the

health care system of Australia that


11

stipulates the requirement for

professional information based on

expertise in terms of law-making activity

regarding the health care system.

Mi-Young Kim, Juliano Rabelo,

Randy Goebel discussed components for

both Canadian statute law information

retrieval and confirmation of textual

entailment between statutes and legal

questions [13].

Nevertheless, it is worth noting that

the theoretical and practical problems

of the definition, principles, requirements,

classification, and types of information used

in law-making process in our country have

not been studied as a comprehensive study

in terms of improving the primary and

secondary legislation of the Republic of

Uzbekistan. Considering the issue from the

theoretical and legal point of view, the

classification issue of information provided

for law-making activities, the classification

based on criteria were sufficiently studied in

this paper.

Methodology. The object of this

study is to examine the theoretical-

practical problems of the definition,

principles, requirements, classification, and

types of information used in the law-making

process in Uzbekistan. The major

purposes of the study are – to elaborate

proposals for the development of

definition, classification, and types of

information; and to considerate such

concepts in the current normative legal

acts to improve the quality of

fundamental understanding; and to

increase the confidence of academics,

scientists, and citizens in the country’s

law-making activities.

In order to achieve the goals, the

research applied methods of scientific

research, such as analysis, synthesis,

comparative and systemic analysis.

Results. By analyzing the works

of scientists, the author determined the

main definition, classification, principles,

requirem-ents of information used in the

law-making process.

We considered it is expedient to

develop an author’s definition for the

following conceptual and fundamental

notions:

“Information for law-making – is a

systematized set of data about

individuals, objects, facts, events,

phenomena, and processes, reflected in

the informational-analytical materials,

which are determined to be presented to

a legislator.”

“Legal information – is a set of

information that summarizes information

in normative legal acts, official

interpretations, explanations on the

application of normative legal acts,


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materials provided by the court and law

enforcement agencies.”

“Informational support of law-

making activity – is a process of

information exchange provided to

primary and secondary legislators for

collection, processing, analysis, storage,

and presentation.”

While analyzing the literature

dedicated to law making, the author

developed the information classification

submitted to the legislators as follows:

1. According to the materiality of

information:

- information in a material form.

Data, which have material,

internal, structural units, describe the

organization the order of any system. For

example, informational and analytical

materials, documents attached to drafts

of normative legal acts, etc.;

- non-material information.

Such information, by its nature,

does not have form of any matter, but

can be cited as examples of verbal

assignments and orders, information in

electronic form, and the views of the

general public.

2. According to the form of

expression:

- written;

- electronic;

- verbal.

3. According to the normative

significance:

- legal;

- non-legal.

4. According to the accessibility:

- open access;

- confidential information.

5. According to the submission

procedure:

- information that must be

provided (obligatory information);

- voluntary information (unrequired

but additional).

6. Information related to the

conclusions of expertise:

- information in expert

conclusions;

- expert opinions in verbal form.

7. According to science-based

lawmaking:

- scientific information;

- general information.

In addressing the problem from a

theoretical-legal point of view, it should

be stressed out that the classification

issue of information provided for

lawmaking activities based on

appropriate criteria has been thoroughly

studied in this paper.

Discussion. There are various

approaches to the classification criteria

for information types. In particular,

I.Y. Pavlov proposes to define the


13

following types of information: a) open

access information, b) confidential

information.

However, depending on the

content of information I.Y. Pavlov,

stipulates the following types of

information [14]:

a) normative and technical;

b) legal (normative legal acts, non-

normative legal acts);

c) scientific (scientific research

results);

d) sanitary and epidemiological;

e) environmental (about the state

of the environment, etc.);

f) emergency (information about

the emergency occurrence);

g) social (preferences, benefits,

pensions, etc.);

h) general information about the

authority;

i) statistical;

j) financial and economic.

In our opinion, the restriction of

legal information by normative legal acts

may serve as a basis for its narrow

meaning. However, the adoption of law

enforcement acts on the implementation

of normative legal acts, comments on

normative legal acts, instructions and

guidelines for the application of

normative legal acts (decisions of the

Plenum of the Supreme Court, orders of

the Prosecutor General, etc.) also

constitute legal information.

Non-legal information may include

economic, criminological, statistical,

forensic, operational and other analysis

of legal practices, standards, civil law,

contractual and other obligations,

scientific and legal information.

Based on this research, the legal

information provided in the process of

lawmaking can be divided into several

levels:

1) the first level – higher normative

legal acts and rules: a) international

agreements, the Constitution, laws of the

Republic of Uzbekistan, resolutions of

the Oliy Majlis;

2) the second level – decisions of

the supreme judicial authorities

(decisions of the Constitutional Court, the

Supreme Court of the Republic of

Uzbekistan); decisions of courts and law

enforcement agencies;

3) the third level – the conclusions

of legal value, expressing the views of

specialists and experts.

It is crucial to classify the legal

information provided for the national

primary and secondary legislators into

the following types, based on the nature

of universality:

1) normative legal information –

the most common type, information


14

directly related to the norms of law can

be cited at different levels (international

agreements, general normative legal

acts, normative legal acts of local

bodies, etc.).

2) non-normative legal information

– official (documented) conclusions of

experts and specialists, decisions of

courts and law enforcement agencies, as

well as doctrinal conclusions of legal

scholars on various public life issues.

From the theoretical perspective

of legal information, the legal data of a

historical-theoretical nature suggests that

scientist should not forget about such

types as epistemological, anthological,

axiological. In our view, this approach

serves to turn the process of law-making

into a purely scientific activity and

alienation from practice. Therefore, we

emphasize that it is inadvisable to accept

the views of some scientists.

We may agree with the above

mentioned classification of information

types in the law-making process.

However, if we pay attention to the

current legislation of Uzbekistan, we

would find something extraordinary.

There are following normative

legal acts, which regulate law-making

activity in the Republic of Uzbekistan:

1. Law of the Republic of

Uzbekistan “On the Regulation of the

Legislative Chamber of the Oliy Majlis of

the Republic of Uzbekistan” (adopted on

August 29, 2003) [15];


Uzbekistan “On the Regulation of the

Senate of the Oliy Majlis of the Republic

of Uzbekistan” (adopted on August 29,

2003) [16];


Uzbekistan “On the procedure for

drafting laws and submission to the

Legislative Chamber of the Oliy Majlis of

the Republic of Uzbekistan” (adopted on

October 11, 2006) [17];


Uzbekistan “On normative legal acts”

(adopted on December 24, 2012) [18];

5. Joint Resolution of the

Legislative Chamber and the Senate of

the Oliy Majlis of the Republic of

Uzbekistan “On rules of legal and

technical design of draft laws submitted

to the Legislative Chamber of the Oliy

Majlis of the Republic of Uzbekistan and

the Senate of the Oliy Majlis of the

Republic of Uzbekistan” (adopted on

December 30, 2010) [19];

6. Order No. 39 of the Minister of

Justice of the Republic of Uzbekistan

“On approval of guidelines on the

procedure of preparation, legal and

technical clearance and legal

examination of normative legal acts


15

introduced by the state and economic

management, public authorities on the

ground in the Cabinet of Ministers of the

Republic of Uzbekistan” (registration

number 2352 – adopted on April 9,

2012) [20];



“On approval of the instruction on the

procedure of preparation, legal and

technical drafting and legal expertise of

normative legal acts adopted by local

public authorities” (registration number

2420 – adopted on February 1,

2013) [21];



“On approval of rules for the preparation

and adoption of departmental

regulations” (registration number 2565 –

adopted on February 28, 2014) [22].

Although there are 8 main

normative legal acts regulating national

primary and secondary law-making

process. They do not stipulate the

definition, principles, requirements, and

classification of information.

Nevertheless, other sorts of

normative legal acts fix the conceptual

notions of some types of information in

various spheres, in particular, in the

resolution [23] No. 22 of the Cabinet of

Ministries of the Republic of Uzbekistan

(adopted on 14 January 2020) which

determines the status of information as

“confidential” or “for official use.”

It is known that confidential

information is a set of data of which

unauthorized dissemination, which is

detrimental to the interests of the state or

private individuals, is prosecuted under

the laws of the Republic of Uzbekistan.

Such information covers state,

military, and service secrets.

Information, the disclosure of

which may adversely affect the quality

of military and economic capabilities

of the republic or have other serious

consequences for defense capabilities,

state security, economic and political

interests of the Republic of Uzbekistan,

is a state secret.

The disclosure of information of a

military nature, which may have serious

consequences for defense capabilities,

state security and the Armed Forces of

the Republic of Uzbekistan, constitutes a

military secret.

But in the current legislation of

law-making do not include even the

definition of secret information, although

primary and secondary lawmakers have

applied this type of information over a

long period of time.

Moreover, due to the general

nature of legal information, we can divide


16

it into the following types: 1) official legal

information – information that is accepted

by the competent state authorities, has

legal significance and is aimed at

regulating social relations (normative

legal information); 2) information of an

individual legal nature – law enforcement

acts adopted by the court and law

enforcement agencies (court decisions,

etc.).

The information provided to the

primary and secondary legislators must

comply with certain principles, as can

be seen from the fact that this issue has

received special attention in many

foreign countries. In particular, the guide

entitled “What is Legal Information?” of

the U.S. Illinois Supreme Court

Commission on Access to Justice lists

the following key features of legal

information:

1) legal information should be

neutral and the information should not

take precedence over the legal position

of one party over the position of the

other;

2) legal information is universal

and the information should be the same

regardless of which party receives it;

3) legal information is objective

and should not require knowledge of the

specific details of the case;

4) legal information is not limited,

the information can come not only from

licensed lawyers, but also from any

person [24].

If we pay attention to the national

scientists, among them only Professor

M.K. Najimov noted that, the

organization of accounting of normative

legal acts is based on the following

principles:

Completeness of information

volume. Based on Professor, all relevant

information is taken into account and on

this basis gaps and losses in the

information array are prevented;

Data reliability. In this case, the

text of officially published normative acts

is provided, and at the same time,

subsequent amendments and additions

to it will be made accordingly;

Ease of use. Based on the

application of this principle, it is possible

to find the necessary information about

the relevant legal rule in a fast and high-

quality manner [25].

In our opinion, the requirements

for information in the law-making process

should be developed on the basis of the

following principles:

Completeness of information –

requires adequate information to

understand the nature of the event;


17

Data reliability – the

correspondence of the data to the

objective reality, the absence of

differences between the reality and the

information;

Timeliness and adequacy of

information – paves the way for the

recipient of information to create an

appropriate perception of the reality,

object, process, or event. The concepts

of reliability and relevance of information

should not be confused. The acceptance

of the information determines the

adequacy of the information received by

the national primary and secondary

legislators;

Novelty of information – for all

legislators, the obtained data are

required to form a new objective data

structure on the relations to be regulated.

Abstract or generally known information

cannot be the object of a legal

relationship without having consumer

properties. Therefore, in law-making the

old data have no legal significance;

Accuracy of information – the

completeness of the information provided

to the characteristics of the reality,

semantic accuracy as an indicator of

the evaluation of the data search

effectiveness, the ability to express data.

Clarity is the conformity to reality, an

accurate, consistent reflection of any

event;

Optimality of information supply

systems – the information provided to the

national primary and secondary

legislators should be sufficient for

decision-making, should not lead to

additional time losses in the process of

data collection, storage, transmission,

and processing;

Openness and confidentiality of

certain information – access to

information includes the need for free

and open access by entities and the

need to prevent the disclosure and

dissemination of information related to

certain state and military secrets.

From our point of view, the

national legislation of Uzbekistan should

be amended and supplemented with the

above stated principles and requirements

of information submitted to the primary

and secondary legislators.

As we mentioned, there is no

provision for the classification of

information provided in the materials

submitted for the development of

normative legal acts, including

resolutions of the Cabinet of Ministers. In

particular, the Order No. 83 of the

Minister of Justice of the Republic of

Uzbekistan of April 9, 2012 “On approval

of guidelines on the procedure of


18

preparation, legal and technical

clearance and legal examination of

normative legal acts introduced by

the state and economic management,

public authorities on the ground in the

Cabinet of Ministers of the Republic

of Uzbekistan” prescribes that the

working group, while developing the

methodological guidelines on the

procedure, collects statistical, analytical

information materials related to the

subject of legal regulation of the project

(section 15); if necessary, prepares

references, tables, diagrams and other

informational and analytical materials

(section 16); although rules such as the

basic requirements for the attached

information and analytical materials

(section 103) are specified; the

classification of the information is not

provided. The rules in the Order fix a

declarative manner, which cannot oblige

public authorities to organize working

group to check information for law-

making purposes.

From scientific perspective, this

empty clause in normative legal

acts may lead to misclassification of

information, inadequate requirement for

information, unspecific division of law-

making subject obligations, generality of

information and misconception of

scientists.

In addition, according to Article 27

of the Law of the Republic of Uzbekistan

(adopted on October 11, 2006) “On the

procedure for drafting laws and

submission to the Legislative Chamber of

the Oliy Majlis of the Republic of

Uzbekistan,” [26] when the draft law is

submitted to the Legislative Chamber the

subject of legislative initiative should

submit the following documents:

1) an explanatory letter explaining

the concept of the draft law;

2) the draft law;

3) a list of secondary legislative

acts that need to be amended,

supplemented, and declared invalid or

adopted;

3.1) the analytical comparative

table with the sequence of the

reasonable suggestions on the

acceptance of corresponding provisions

of the international agreements and the

legislation of foreign countries.

4) financial and economic bases

for draft laws requiring material costs;

5) conclusion of the Cabinet of

Ministers of the Republic of Uzbekistan

on draft laws providing for a reduction of

state revenues or an increase in state

expenditures, as well as amendments to

the articles of the State Budget of the

Republic of Uzbekistan.


19

Although the above-mentioned

rule provides mandatory filing, we

consider that it focuses on the form

rather than the content, the materiality of

the information.

In this regard, E.V. Skurko also

proposes to organize the information into

types based on the documents to be

submitted [27].

In particular:

1. Information in the concept of

law;

2. Information obtained as a

result of the expertise of the draft law;

3. Scientific data;

4. Comparative legal information;

5. Strategic information, data in

sample documents,

6. Sociological (social) data.

Conclusion. In summary, we

assume that Uzbek legislators should

amend and supplement the current

legislation taking into account the

definition, requirement, principles and

classification of information submitted to

the national primary and secondary

legislators. Thus, the unsystematized

and unclassified types of information

for law-making in our country have

a negative impact on the legal

informatization of primary and

secondary law-making activities, as this

leads to different interpretations of the

volume of information, the lack of

consensus, the ambiguity of the

requirements for informational analysis.

Therefore, one of the effective ways to

address this issue is to develop the

definition, classification, principles, and

requirements for the information basing

on the scientific justification of proposals

with the involvement of legal scholars.

Of course, in this case, the support of

scientific research on the full coverage

of the classification of legal and non-

legal information will serve to achieve

new milestones.

Indeed, the delivery of legal

information and non-legal information by

effective means, the formation of views

on information as a necessary source of

law-making, is undoubtedly an important

factor in reflecting the state of affairs in

the sphere of law-making.

We are in favor of the

classification of legal and non-legal

information in the legislation. This, in

turn, can have a significant effect on the

quality of the information submitted to the

national legislators, serving as an

impetus for effective decision-making.

.


20

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dissertation. – Tashkent: TSUL. – 2012. – P. 218; Improving the organizational and

legal framework for the expertise of lawmaking. Dcs dissertation. – T.: Academy of

Public Administration under the President of the Republic of Uzbekistan. – 2018. –

P. 298. // Scientific electronic library of dissertations and abstracts – www.diss.natlib.uz

3. Shodikulov O.Z. Problems of improving the quality of legal techniques and laws.

PhD dissertation. – Tashkent: TSUL. – 2011. – P.172. // Scientific electronic library of

dissertations and abstracts – www.diss.natlib.uz

4. Abdullaev B. Problems of improving the legal expertise of legislation in the

Republic of Uzbekistan. Abstract of PhD dissertation. – Tashkent: TSUL, 2009. – P. 25.

5. Rustamov P.A. Scientific and informational support of legislative activity in the

Republic of Uzbekistan. Abstract of PhD dissertation. – Tashkent: TSUL, – 2000. –

P. 24.

6. Saydullaev Sh.A. Gaps in law: theoretical and legal problems. PhD dissertation.

– Tashkent: TSUL, 2011. – P. 157.

7. Tulteev I.T. Forecasting of law making: theory, methodology, practice. PhD

dissertation. – Tashkent: Academy. – 2010. – P. 310.

8. Pavlov I. Yu. Legal support of access to official information: PhD dissertation. –

Sciences, Institute of State and Law. – Moscow, 2008. – P. 34. Available from.

https://www.prlib.ru/item/468635

9. Azizov R. F Legal information: theoretical aspects of understanding and

features of legislative consolidation “History of State and Law,” 2007, N 4. Available

from. https://center-bereg.ru/h1790.html

10. Proskurin A.S. The concept of legal information as the basis of the information

society. ISSN 2078-8495. 2016. No. 1 (30) P.51-57. Available from. https://j.jvolsu.com

/index.php/ru/component/attachments/download/1267

11. Riedl Jasmin Uncovering legislative pace in Germany: A methodical and

computational application to answer temporal questions of law making. Government

Information Quarterly. 36 (2019) 101390 Available from. https://reader.elsevier.com

/reader/sd/pii/S0740624X19302126?token=665CD478522A8B4F40AB8C9866C7021C

http://www.diss.natlib.uz/

http://www.diss.natlib.uz/

https://j.jvolsu.com/


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3A070F3AC819485817EEA675AC31A6BE1B2A2032B63D80CAA681D145BB43E21B

12. Elizabeth Brophy Health care decision-making, CM and the law. Advances

in Integrative Medicine. 1 (2014) 40-43.

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1AE55A4DA9CD86C4DF458

13. Mi-Young Kim, Juliano Rabelo, Randy Goebel Statute Law Information

Retrieval and Entailment. ICAIL '19: Proceedings of the Seventeenth International

Conference on Artificial Intelligence and LawJune 2019, P. 283-289. Available from.

https://www.scopus.com/record/display.uri?eid=2 s2.0 85071253052&origin=resultslist&

sort=plf f&src=s&nlo=&nlr=&nls=&sid=acf33adca9bebfe30d1032e75d8daa9d&sot=b&sd

t=cl&cluster=scofreetoread%2c%22all%22%2ct%2bscopubyr%2c%222019%22%2ct%2

c%222018%22%2ct%2c%222017%22%2ct%2bscosubjabbr%2c%22SOCI%22%2ct%2

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https://reader.elsevier.com/reader/sd/pii/S2212962613000084?token=28B0DBB587DFD369DFBCE2DF66CA9122454B44B0DD4F09D12132CF34029D9CC71AC7BC0B43A1AE55A4DA9CD86C4DF458



https://www.scopus.com/record/display.uri?eid=2 s2.0 85071253052&origin=resultslist&sort=plf f&src=s&nlo=&nlr=&nls=&sid=acf33adca9bebfe30d1032e75d8daa9d&sot=b&sdt=cl&cluster=scofreetoread%2c%22all%22%2ct%2bscopubyr%2c%222019%22%2ct%2c%222018%22%2ct%2c%222017%22%2ct%2bscosubjabbr%2c%22SOCI%22%2ct%2c%22ARTS%22%2ct&sl=26&s=TITLE-ABS-KEY+%28law+making%29&relpos=150%0b&citeCnt=3&searchTerm







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Moscow., 2002. – P. 24.


23

HISTORY AND JURISPRUDENCE

UDK: 34(042)(575.1)

ORCID: 0000-0002-8312-9234

Otabek Gulomjonovich Nazarov,

Student of Criminal Justice Faculty



A R T I C L E

I N F O

A B S T R A C T

Keywords:

the legal family,

Zoroaster, Abu Hafs

al-Kabir al-Bukhari,

Imam al-Bukhari,

Ubaydullakhodja

Asadullakhodjaev,

“Avesta,” “Qazayo as-

sahabati vat-tobein.”

Lawyers, history, and jurisprudence.

These closely related categories are the main

focus of the article. This article is about legal

families, the first lawyers, and the first scientific-

legal works in the history of our country. It

contains a scientific analysis of historical

sources and information, the history of the

activities of lawyers, world-renowned scientific-

legal works.

In particular, lawyers, their scientific and

practical legal activities are accepted as legal

values and studied systematically, separately,

and in chronological order. The article provides

a general scientific analysis of the history of the

legal system of our country, summarizing the


24

results of research conducted within each legal

family. In particular, in the order Zoroaster –

“Avesta,” Imam al-Bukhari – work of “Qazayo

as-sahobati vat-tobein,” Ubaydullahoja

Asadullahojayev ‒ his practical and legal

activity. The article offers practical suggestions

on perpetuating the name of these lawyers and

the worthy award and appreciation of the legacy

of scientific-legal works that have come down to

us, as well as their research and in-depth

scientific study.

INTRODUCTION

The role of legal values in the

national legal system of each country

is invaluable. In particular, the national

legal system of Uzbekistan differs

from the legal systems of other

countries in its richness of legal

values. Our wise people, with their rich

and exemplary scientific and legal

heritage, should be proud of their

world-famous lawyers, who have left

an indelible mark on history.

In general, our country has

used three different legal systems in

its legal history, and the third of them

is still in force in our country. The first

legal family is the ordinary-

traditional legal family, the second is

the Islamic (Muslim) legal family, and

the third is the Romano-Germanic

(continental) legal family. All of these

legal families still exist today. Only the

modern national legal system of our

country belongs to the Romano-

Germanic legal family.

What is a legal family? The

legal family is a set of national legal

systems distinguished by the

commonality of legal sources, the

legal system, and the way of its

historical formation. The legal systems

of the world are divided into the

following legal families according

to this criterion: common-law

(Anglo-Saxon), Romano-Germanic,

traditional common, Muslim, Hindu,

and Slavic.

No qualification (classification)

of the legal family is strictly defined for

the legal systems of the world, and no


25

strict criteria are set. Therefore, in

some scientific-legal literature, there

are different views of the families of

national law. The sources of law are

recognized as the main criteria and

characteristics for the qualification of

the above 6 types of legal families.

The rest of the qualifications are

based on different legal, spiritual

(religious, ethical, etc.), and cultural-

historical criteria, and one of these

characteristics may be the most

important advantage in distinguishing

a legal family. In our opinion, it is

expedient to classify legal families

based on the sources of law. Another

important aspect that should be a

priority is the historical development of

the legal system in the country. There

are several historical examples and

proofs of this.

As we further improve our

national legal system and enter a new

era of its development, we must

acknowledge that there are still

several questions of interest to us

today in the context of the theory and

history of state and law. First of all,

who was the first lawyer in the history

of Turan? Who wrote the first legal

works? Who were the first lawyers of

the new legal families in the process

of formation of national legal systems,

which emerged as a result of the

exchange of legal families in our

country? Who among the historical

figures wrote scientific-legal works on

the new legal families that came to our

country? At a time when the

foundations of the Third Renaissance

are being laid in Uzbekistan, it is

impossible to imagine the future

development of our national law

school without finding answers to such

questions.

Zoroastrianism. The ordinary-

traditional legal family. Zoroastrianism

is a historical figure whose name is

included in the legal encyclopedia of

Uzbekistan. Thus, we have enough

grounds to consider Zardusht, one

of the thinkers who promoted

monotheism in the world, as the first

lawyer in the history of our country ‒

Turan. Of course, in this regard,

Zardusht is the first lawmaker in the

history of our country. He lived and

worked in the VIII century BC and died

in the late VIII century BC, early VII

century. His real name was Magupta.

He was the son of Purishasp and

Farahim’s daughter Dugdova, of the

Spitama clan, which belonged to a

tribal union formed in the lower

Amudarya in the first quarter of the

eighth century BC.


26

Initially, Bactria in the territory

of present-day northern Afghanistan,

which broke away from the Greater

Khorezm state (Bactria is Baxdi in “the

Avesta"), declared itself an

independent state. Zoroaster went to

the palace of Gushtasp (Vishtasp), the

ruler of the Bactrian state, to show his

prophecies and convert them to his

religion. The Gathas, composed by

Zoroaster at the behest of Gushtasp,

were later collected by his disciples

and compiled into a book “Avesta.”

“The Avesta” (Parthian apastak

‒ text; often called Zand-Avesta,

meaning “interpreted text”) is a

collection of sacred books of

Zoroastrianism. “The Avesta” is the

first legal work and source in the

history of Turan. According to many

researchers, “the Avesta" was

discovered in Central Asia, especially

in Khorezm, which was formed in the

1st half of the 1st millennium. We

know that “the Avesta” was formed

over a long period of time. The oldest

pieces of information contained in it

date back to the end of the 2nd

millennium ‒ the beginning of the 1st

millennium BC, passed down orally

from generation to gene-ration. In the

following centuries, “the Avesta” was

incorporated into various religious

traditions, morals, and laws.

Zoroastrianism was a man who

systematized “the Avesta” as a

religious work.

“It is said that the first written

copy was written on the skins of

12,000 cattle. It is preserved in

Persepolis. This copy was burned

when the Great Alexander of

Macedonia conquered Iran. The

Archaic was re-booked in the

Vologes I period (51-78), but it has not

been preserved. In the Sassanid

period (3-4 centuries.) it was again

made into a single book. “The Avesta”

consisted of 21 nasks. Due to its large

size, a compact form, “the Little

Avesta,” was created for religious use

in everyday life. After the Arab

conquest of Iran (7th century), some

Zoroastrian priests moved to India.

Their descendants (Persians) still

keep the original “Avesta” in their

communities in Bombay.” [1]

Zoroastrianism systematized the

legal customs included in “the Avesta”

in such a way that, in the eyes of the

peoples of Central Asia, “the Avesta”

was not merely a collection of sacred

books, but a source of law that

established strict rules. In our opinion,

Zardusht was the first person

to introduce a law enforcement


27

mechanism in “the Avesta.” It should

be noted that several legal concepts

and images, such as honesty, impure,

sin, goodness, heaven, hell, freedom,

angel, devil, satan, giant, seven layers

of heaven, seven layers of earth,

worldly mind, worldly spirit, the

apocalypse, the bridge, and the final

judgment, were originally developed in

“the Avesta” in the legal history of

ancient Turan. It is still relevant today.

“The Avesta” was translated into

several different languages at different

times, including French, German,

Russian, modern Persian, and Uzbek.

In conclusion, Zardusht is the

first lawyer in our national history.

“The Avesta” is the first legal work in

the history of our country to prove that

he was a lawyer.

Abu Hafs al-Kabir Ahmad ibn

Hafs al-Bukhari. Imam Abu

Abdullah Muhammad ibn Ismail ibn

Ibrahim ibn al-Mughirah ibn

Bardazbeh al-Juafi al-Bukhari.

Islamic (Muslim) legal family. The

armies of the Arab Caliphate, which

entered our country in the second half

of the 7th century, completely

occupied the lands of Turkistan in the

first quarter of the 8th century.

Although our ancestors were forced to

convert to Islam initially, they later

began to live according to Islamic law,

realizing its meaning and essence.

This, in turn, led to the replacement of

the customary legal system in the

national legal system of Turkestan by

a legal system based on Islamic

Sharia. Fiqh, as an independent

science, was fully formed in the 10th

century. Our ancestors also made a

worthy contribution to the formation of

jurisprudence. At the same time,

Islamic law introduced new legal terms

and principles into the national legal

system of Turkestan, and further

enriched the content of existing legal

concepts.

Our great scientists, who lived

in our sacred land and made a unique

contribution to science and spirituality

with their masterpieces, are still

famous in our country for their

scientific, spiritual, religious-legal

heritage. Much of this vast heritage is

devoted to Sharia and Islamic law

(fiqh). At this point, we should not

forget that there is a logical structure.

That is, any faqih is a lawyer, but any

lawyer is not a faqih. We should not

forget that the concept of “faqih” is

much broader than the concept of

“lawyer.” It is also worth noting that the

legal terms “fiqh,” “faqih” are included


28

in the legal encyclopedia of

Uzbekistan.

In our opinion, after the full

formation of Islamic law in our country,

the study of jurisprudence has

become widespread among the

population. The first faqihs began to

appear among the people of

Turkestan. Of course, a question

arises. Who was the first of our

ancestors to reach the level of faqih?

An analysis of the data that come

down to us shows that the first faqih

(jurist) in the history of Turan, that is,

the person who attained the rank of an

expert in Islamic law, was Abu Hafs

al-Kabir Ahmad ibn Hafs al-Bukhari.

Abu Hafs al-Kabir was born in

Bukhara in 768 AD and died in 832

AD. Historical sources do not contain

information about the scientist’s youth.

Nevertheless, he, as other scholars,

traveled to Iraq, one of the centers of

learning in the 8th and 9th centuries,

to increase his religious and

legal capacity. There he studied

jurisprudence from Muhammad ibn

Hasan ash-Shaybani, a student of the

great mujtahid Abu Hanifa, the

founder of the Hanafi’s school of

jurisprudence, a representative of the

school of opinion that emerged in the

8th century.

“Abu Hafs al-Kabir played a key

role in the entry of the Hanafi School

into Movarounnahr. It is known that

this sect entered our country in two

ways. The first is that the Balkh

students of the founders of the sect

living in Iraq, in particular, entered

Samarkand through Abu Bakr

al-Juzjani. The second route is direct

to Bukhara via Abu Hafs al-Kabir.

Muhammad ibn Hasan

ash-Shaybani was the person who

regulated the norms of the Hanafi

School and made them written. His

“al-Asl,” “al-Jame’ as-sagir,” “al-Jame’

al-kabir,” “az-Ziyadat,” “as-Siyar as-

sagir” and “as-Siyar al-Kabir” works

are known in the Hanafi school as

“zahir ar-rivaya” and have a

constitutional significance within the

sect. Because the general principles

of all the norms within the sect are

developed from these works and the

norms that contradict them are

rejected.” [2]

Abu Hafs al-Kabir brought five

of these works to Bukhara during the

lifetime of Muhammad ibn Hasan

ash-Shaybani, in the early 9th century.

Nevertheless, when he crossed the

Amudarya, he dropped the books. As

a result, after arriving in Bukhara, the

faqih began to teach the works of his


29

master, the laws of the Hanafi School,

to his local students based on his

memory. It is noteworthy that Abu

Hafs mastered the rules of law

mentioned in the “apparent narration”

and in Bukhara began to apply these

principles to various situations by

analogy. This process is called “tahrij”

in Islamic jurisprudence.

Abu Hafs al-Kabir established a

law school in Bukhara. Abu Hafs

al-Kabir is the first jurist in the history

of Turan to establish a law school.

His son, Abdullah, was also active in

spreading Hanafi jurisprudence in

Movarounnahr. Hence, he was called

Abu Hafs as-Sagir, meaning “little

Abu Hafs.”

Abu Hafs al-Kabir’s fame

spread to Iraq and other countries, the

home of the Hanafi School. There are

reports that Arab scholars have often

turned to Abu Hafs al-Kabir for legal

solutions to difficult issues. Therefore,

his knowledge and phase were highly

valued, and he became a “teacher of

Islam,” in Arabic “muallimi Islam.”

Thanks to him, Bukhara became

known as “Qubbat ul-Islam,” which

means “the dome of Islam,” and the

gate of the neighborhood where he

lived was called the “Hakroh" meaning

“True Way.”

However, no scientific work,

especially legal work, has survived

from Abu Hafs al-Kabir. However, we

found it necessary to conduct a

scientific analysis of the works that

have survived to the present day,

dealing directly with the issues of

Islamic law (fiqh). As a result, we have

concluded that “Qazayo as-sahabati

vat-tobein” (“Judgments of the

Companions and the Tobein”), written

by Imam al-Bukhari, is the first

scientific-legal work on Islamic

jurisprudence in our national history.

Imam al-Bukhari’s “Sunan al-Fuqaha”

(“Rulings of the Faqihs”) is also one of

the works of jurisprudence and is the

second scientific-legal work known

to us.

Unfortunately, copies of both

books were not been preserved and

have not reached us. Valuable

information on these two books is

known to us only through the fact that

some imams narrate hadiths from

Imam Bukhari and mention the

source, which is narration. Imam

Bukhari collected these two collections

and kept them until the book “Al-Jami’

as-Sahih” was published.

Ibn Abi Hatim narrated from

Imam Bukhari that he said:


30

“When I was eighteen, I wrote

the book “Qazayo as-sahabati

vat-tobein.” Then I finished “at-Tarikh”

in front of the tomb of the Prophet of

Allah (s.a.v) in Medina. I would write it

down at night in the moonlight. No

matter what the names in history, I

had their story. But I didn’t want to

prolong the book.” [3]

Based on the above source, we

can say that “Qazayo as-sahabati

vat-tobein” was written around

828 years. Imam al-Bukhari was born

in 810 years, and in 828 years he was

18 years old. The legal work “Sunan

al-Fuqaha” was later published during

the maturity of “the Imam of the

Hadith.”

In conclusion, Abu Hafs al-

Kabir al-Bukhari is the first jurist-faqih

in our national history. The law school

he founded was the first law school in

the history of Turkistan. The work

“Qazayo as-sahabati vat-tobein”

(“Judgments of the Companions and

the Tobein”), created by Imam

al-Bukhari, is the first scientific-legal

work on the history of Islamic law in

our country.

The Romano-Germanic legal

family. Ubaydullahoja Asadullahoja-

yev. The Russian Empire’s military

campaign against the Central Asian

khanates, which began in the mid 19th

century, ended in the last quarter of

the 19th century when the people of

Turkistan became one of the Empire’s

dependent nations. Initially, the

system of judges (Sharia court) and

by courts (tribal court) was established

by imperial politicians and the

administration of Governor-General of

Turkistan in 1867. However, gradually,

during this time, the laws of the

Russian Empire began to be imple-

mented. In the early 20th century,

including in the 1920s, after the

phenomenon of national-territorial

delimitation, a new legal family ‒ the

Romano-Germanic legal family ‒

began to take shape in our country.

A well-known public figure,

a great representative of the Turkistan

Jadid movement, one of the first

organizers of Uzbek press ‒

Ubaydullahoja Asadullahojayev was

born in 1878 in “Qoryogdi mahalla” of

Tashkent. He studied law in Russia

and became the first Uzbek lawyer

with a higher education.

Initially, after graduating from

the Russian-language school in

Tashkent in 1897, he worked as a

translator in one of the courts.

U. Asadullahojayev, who is fluent in

Russian, later became a law student


31

at the age of 30 at the Law Institute in

Saratov, Russia. At the age of 34, he

completed his legal education and

became a lawyer with a university

degree. As a student from 1908 to

1912, he sought solutions to problems

around the world, and in 1909, he

corresponded with the famous

Russian writer L.N. Tolstoy. After

graduation, he worked first as a

private lawyer in Saratov and then in

1913 in the Tashkent district court.

On several occasions, he exposed

the corruption and tyranny of the

Emperor’s officials and even removed

some of them from public office.

When U. Asadullakhojayev was

the chairman of the Turkistan

Recruitment Committee, which was

formed in Tashkent in 1916 and was

engaged in recruitment, the

Committee disclosed the arbitrariness

of Emperor’s officials. On June 25,

1916, the Russian Emperor Nicholas II

(1894‒1917) issued a decree at

the suggestion of the Supreme

Commander-in-Chief and the Minister

of War. According to the decree, men

under the age of 43 were to be

mobilized. To overturn the decree,

Asadullahojayev traveled to

St. Petersburg with local nationalist

tycoon Mirkomil Mirmominbayev to

prove that the decree had been

passed at a December 1916 session

of the Russian State Duma in violation

of Russian law. However, such efforts

did not yield any positive results.

As a result, Asadullakhojayev,

who lived and worked to alleviate

the suffering of the people and

protect their rights and freedoms,

was prosecuted on charges of

“nationalism” for his benevolent

attitude to the Turkistan independence

movement and his struggle against

the colonial regime. He was

imprisoned several times and died in

prison in 1937.

From the above, it can

be concluded that Ubaydullakhoja

Asadullakhojayev was the first lawyer

in the history of Turkestan with a

higher education in the Romano-

Germanic legal family, which today

belongs to our national legal system.

He used the legal knowledge he

received at the law school to

implement the law, including in the

practice of law enforcement, in the

interests of the people.

In general, one of the prospects

for the jurisprudence development in

Uzbekistan is a scientific study of the

activities and legal works of the great

lawyers mentioned above.


32

REFERENCES

1. O‘zbekiston yuridik ensiklopediyasi – Tashkent: “Adolat”, 2010 – p. 668.

2. Abdullayev A., Sarsenboyev O. “Movarounnahr faqihlari” ruknida –

J. “Huquq va burch” – Toshkent, 2009 (1st edition). – p. 29.

3. Mamadaliyev Said Azim. “Imom Buxoriy ta’rifi”. Risola. – Tashkent:

“Cho‘lpon”, 1996, p. 80.

4. Shayx Muhammad Sodiq Muhammad Yusuf. “Mazhablar – birlik ramzi” –

Tashkent, “Hilol-nashr”, 2018. – p. 216.

5. A.Sh. Jo‘zjoniy. “Islom huquqshunosligi, Hanafiy mazhabi va O‘rta Osiyo

faqihlari”. – Tashkent, “TIU” publishing house, 2002, p. 256.

6. “Ma’naviyat yulduzlari”. Under the editorship M.M. Xayrullayev,

academician of the Academy of Sciences of the Republic of Uzbekistan. –

Tashkent, “A.Qodiriy” nation’s heritage publishing house, 2001, p. 408.

7. Shayx Muhammad Sodiq Muhammad Yusuf. “Fiqhiy yo‘nalishlar va

kitoblar” – Tashkent, “Sharq”, 2011, p. 304.


33

12.00.02 – Constitutional law. Administrative law. Finance and

customs law

ATTENTION TO CHILD RIGHTS IN UZBEKISTAN AND THEIR LEGAL

PROTECTION UNDER NATIONAL LEGISLATION

UDK: 347.63(042)(575.1)

Saydullo Abdukakhar Oglu Ubaydullayev,

Bachelor’s Student



A R T I C L E

I N F O

A B S T R A C T

Keywords:

the concept of child

rights, the fundamental

basis of child rights,

the constitutional and

legal status of the

child, ensuring the

rights of the child, state

policy on child rights.

The article covers the attention to the

rights of a child in the Republic of Uzbekistan;

the comprehensive provision of their rights;

the education of the younger generation in

the spirit of freedom, democracy and Human

Rights; the development of a perfect human;

the protection of rights and freedoms; the

construction of a democratic, legal state

based on civil society; the creation of

international, detailed information on the

attention to the rights of the child, as in all


34

democratic states, as well as on the reforms

carried out in the field of legal protection of

their national legislation.

INTRODUCTION

No matter what country it is, if the

merry laughter of children is heard in it,

then not only the present, but also the

future of this land will certainly be bright.

For such a carefree childhood, a child

needs affection and attention. After all,

we should deeply care about the fate,

rights, and freedoms of children while

political tension and socio-economic

instability continues in almost all parts of

the world today. Therefore, the issue of

children’s rights protection is vital.

Just as it is not possible to

imagine the meaning of our life without

rights and freedoms that are of crucial,

children also need the recognition of their

rights and freedoms. Nevertheless, for

centuries the rights of children have been

deprived of such special attention. It

should be noted that the legal regulation

of children’s rights in our country begins

with the Constitution of the Republic of

Uzbekistan. Because, as the main law of

the state, Constitution reflects, like all

spheres, consti-tutional, that is, the

funda-mental basis of legal relations on

the rights and the constitutional-legal

status of children. Islam religion also

pays great attention to child rights and

education. According to some hadiths, it

is emphasized that parents should give

their children not only food, but also right

manners and good behavior [1].

Apparently, it is stated that the child has

the right to receive right manners and

good upbringing from his parents.

“Parents want their child to be healthy

and harmonious, intelligent, happy. To

raise such a child and help him to

achieve a decent place in his life are the

biggest, most sacred dream of all

parents. At the same time, in today's

intense times, life itself puts before us

new, extremely important and urgent

tasks on the upbringing of the younger

generation.” [2] Education of the younger

generation is very important for our

country, as 40% of the population of the

Republic of Uzbekistan is under the age

of 18, and 64% is young people under

the age of 30 [3]. Therefore, the priority

direction of the state policy in the field

of human rights and freedoms is to

create favorable and best conditions

for the physical, mental, and spiritual

development of children and young

people, as well as comprehensive

support for families with many children,

orphans and children deprived of a family


35

environment [4]. To educate today’s

younger generation in the spirit of

freedom, democracy, and humanism, to

make them perfect individuals, to protect

and ensure their rights and freedoms are

highly relevant to every society that tends

to build a democratic, legal state based

on civil society. As for all democratic

countries, this issue of educating the

younger generation and forming a legal

culture in the sphere of children’s rights

is extremely important for Uzbekistan.

It is true that a special legal

framework has been formed to ensure

child rights and protect them in every

possible way in our country. Since the

early days of independence, great

attention has been paid to public policy

as a first priority. In particular, this is

evidenced by the adoption of the special

law “On the foundations of state youth

policy in the Republic of Uzbekistan” of

November 20 1991. This law specifies

the purpose of youth policy, the powers

of the Republic of Uzbekistan in the field

of state youth policy, the content and

essence of the laws on state youth

policy, the principle of priority over the

international treaty norms of the Republic

of Uzbekistan regarding this issue.

Besides, those rights of children are

reflected in the Constitution of our

country and other legislative acts. In

addition, independent Uzbekistan

recognized internationally that with the

ratification of the UN Convention on the

Rights of the Child in 1992, and

children’s rights in our society are very

topical [5]. The Convention on the Rights

of the Child sets out four main directions,

which include the provision of children’s

right to live, develop, protect, and

participate in the decisions directly

affecting them. Compliance with all

the requirements mentioned in these

directions is strengthened by the relevant

articles of the Constitution of the

Republic of Uzbekistan. For instance,

according to the Constitution of the

Republic of Uzbekistan, parents should

feed and educate their children until they

reach adulthood; the state and society

should ensure the feeding, upbringing

and education of orphans, children

deprived of the guardianship and their

parents; the state also ensures the

equality before the law and the protection

of motherhood and childhood, regardless

of origin and civil status; and provides for

free secondary education [6]. Up to these

days, our country has been included in

more than 70 international human rights

instruments. Among these international

legal documents, international norms on

child rights are of great importance.

It should be noted that in 2008, when the


36

60th anniversary of the adoption of the

Universal Declaration of Human Rights

was widely celebrated in our country,

the Parliament of Uzbekistan ratified

the following important international

documents on child rights:

The ILO Convention concerning

Minimum Age for Admission to

Employment;

The ILO Convention concerning the

Prohibition and Immediate Action for

the Elimination of the Worst Forms of

Child Labour;

The United Nations Convention

Against Transnational Organized

Crime (New York, November 15,

2000) and the United Nations

Commission on International Trade

Law (UNCITRAL), in particular, have

adopted the Protocol to Prevent,

Suppress and Punish Trafficking in

Persons, especially Women and

Children;

Optional Protocol to the Convention

on the Rights of the Child on the sale

of children, child prostitution and child

pornography;

Optional Protocol to the Convention

on the Rights of the Child on the

involvement of children in armed

conflict [7].

At present, our country has been

included in all major international

documents on protection of children’s

interests and rights. UN Standard

Minimum Rules for the Administration of

Juvenile Justice (Beijing Rules, 1985)

and UN Guidelines for the Prevention of

Juvenile Delinquency 1990 (Riyadh

Guidelines) are clear examples. In

accordance with the requirements of the

Convention on the Rights of the Child,

Civil Code and Family Code have been

adopted, which have strengthened the

rights of the child and improved their

forms of protection. These international

documents on the rights of the child, in

turn, help improve national legislation. In

particular, on January 7, 2008, The Law

of the Republic of Uzbekistan “On

guarantees of child rights,” which was

considered a special law in this area,

came into force, despite the regulation of

Uzbekistan with more than 100 laws on

the rights and freedoms of the child, and

their provision and protection [8]. The law


guarantees of child rights” became the

first special law on the children’s rights in

the history of the law of Uzbekistan.

According to its purpose, this law

regulates the relationship between the

legal situation of the child and the legal

guarantee of the rights and freedoms of

the child. According to the law, the

definition of guarantees that ensure the


37

implementation of the rights and interests

of the child is the main subject regulated

by law. It is worth noting that more than

half of the norms of the law are devoted

to the definition of guarantees of child

rights [9].

These international and national

norms on child rights have created a

legal basis for the formation of a state

policy on child rights in our country. This

policy is manifested in the consistent

activities of state and local authorities

aimed at creating an effective framework

for the legal regulation of relations

connected with the implementation and

protection of children’s rights. Therefore,

the creation of legal and organizational

conditions and guarantees necessary to

ensure and protect the rights of the child

is one of the priorities of the state policy

in our country. As the rights and

freedoms of the child are strengthened in

these legal documents, the country is

taking a wide range of practical

measures to implement them. Namely, it

is noteworthy that the Ministry of public

education and the right to knowledge in

Presidential Schools, creative schools

and Temurbek School, specialized

schools and the Ministry of Pre-school

Education are always the main issues of

Public Policy. About the relevance of

these issues: “it is not surprising that we

are paying special attention to the pre-

school education system, if we do not

focus on the education of young people

from today, tomorrow may be late,” the

head of our state Shavkat Mirziyoyev

said in his speech at the 72nd session of

the UN General Assembly [10].

As a result of the attention paid to

the protection of children’s rights over the

years, today the Institute of children’s

ombudsman was established. Namely,

such an ombudsman institution exists

in Austria, Serbia, Estonia, the

Netherlands, Tajikistan, Russia, Bolivia,

Belgium, and a number of other

countries. Its emergence is mainly due to

the fact that the countries around the

world have ratified the Convention on the

Rights of the Child, which is another

reason why child rights are protected in

the world. In Great Britain, for example,

the Children’s Commissioner for England

is an independent institution; it is not

subject to any state body, not even to

Parliament. In order to eliminate the

existing shortcomings and problems in

the children rights protection, on April 22,

2019, President of our country

Sh. Mirziyoyev adopted the Resolution

No. PP4296 “On additional measures to

further protect the rights of children” is a

practical expression of the work in this

regard [11]. According to the Resolution,


38

the representative of the Oliy Majlis of

the Republic of Uzbekistan for Human

Rights (Ombudsman) was recommended

to submit a draft law “On the

representative of the Oliy Majlis of the

Republic of Uzbekistan for Human Rights

(Ombudsman)” in accordance with the

established procedure, which comes

from this Resolution and provides

for amendments [12].

The Children’s Ombudsman

primarily provides parliamentary control

over the protection of children’s rights:

investigates the living conditions of

minors, conducts individual complaints of

children, as well as helps to eliminate

these deficiencies in line with the

activities of organizations protecting the

child in the country. It is noteworthy that

the Children’s Ombudsman constantly

reports to the Parliament and controls

how the protection of children’s rights

is carried out by state and non-

governmental organizations in our

country. The Resolution “On radical

improvement in the activities of

specialized educational institutions,”

adopted on May 29, 2019, is significant

with the implementation of these urgent

tasks [13]. The representative for the

child rights will also participate in the

development and implementation of

strategies for the implementation of the

UN Convention on the Rights of the Child

and other documents on the issues of

child rights. He performs many important

tasks before population, such as raising

legal awareness and legal culture

regarding the rights, freedoms and

legitimate interests of children.

In the last years, Information and

education activities in the field of child

rights in the country were significantly

active. Educational activity covers the

publication of international legal

documents on the rights of the child,

holding of conferences, seminars and

trainings on this topic. Furthermore,

many legal literature and instruction

books on child rights were published.

Moreover, this is highly important in

increasing legal literacy on child rights in

our country. At the same time, it is worth

noting that the topic of child rights is also

covered in many legal, economic,

pedagogical journals and newspapers

published in Uzbekistan. For example,

the issue of child rights is a priority

direction for the authors of the National

Human Rights Centre of Uzbekistan, the

Ombudsman Institute and Council of the

Federation Trade Unions of Uzbekistan,

the Center for “Social Thought,”

“Democratization and Human Rights,”

“Social Thought and Human Rights”.

Every year one of issues of magazines is


39

devoted entirely to the issues of

observance of child rights in Uzbekistan.

As for the popular scientific journal

“Gender Equality: International Journal of

Child and Gender Studies,” the journal

is devoted to the children’s theme [14].

International documents on the rights of

the child and the study of national

legislation are included in the curriculum

of pre-school educational institutions,

employees of general secondary,

specialized secondary, vocational and

higher educational establishments,

pedagogues and medical staff,

journalists, employees of the law

enforcement system and judges.

Today, a lot of work is carried out

in our country on the protection of

children in social, economic, legal, and

spiritual terms. In particular, it is no

exaggeration to say that our country

has a relevant legal framework for

the protection of children’s rights.

In particular, the Constitution of the

Republic of Uzbekistan, the Family Code,

the Civil Code, the Labor Code, the

Criminal Code and a number of other

legislative acts contain norms for

children’s rights protection. Importantly,

in order to fulfill the international

obligations in the area of the protection

of children’s rights, Uzbekistan is

undertaking a great deal of work to

incorporate international legal norms

into national legislation. The current

legislation pays special attention to the

rights and interests of children, and their

protection, and the legal framework in

this regard continues to be strengthened.

Based on the requirements of the

Convention on the Rights of the Child

and the relevant norms enshrined in the

Constitution and laws of the Republic of

Uzbekistan, it can be said that today the

children of Uzbekistan are “Happy

Children of Uzbekistan.” As there is a

legal guarantee of all their rights and

freedoms, each child is given special

care and attention by the state. In

particular, it is not surprising that children

without parental care are provided with

municipal housing and clearly targeted

communal housing in accordance with

the family environment in which they live,

during the whole time they live together

with the employees of the guardianship

and custody agencies, with the consent

of the guardianship or custody agency,

until they reach the age of eighteen. In

general, meanwhile, Uzbekistan has a

specific national legal system to protect

the rights and interests of children, and

our country is one of the countries taking

a bold step on this path.

It is worth noting that the

necessary legal framework for the


40

protection of children’s rights has been

created in our country. According to that,

the mechanism of implementation and

protection of the child rights has been

developed, which is manifested in the

consistent activities of state bodies and

local government bodies. Therefore, the

creation of legal and organizational

conditions and guarantees that are

necessary to ensure and protect

children’s rights is one of the priorities of

the state policy of the Republic of

Uzbekistan.

.


41

REFERENCES

1. Akhmedov B. Islam religion an important aspect of child education. // System of

protection of the rights of minors and young people: problems and solutions. Materials

of the scientific-practical conference. – Tashkent: Prosecutor General's Office of the

Republic of Uzbekistan, “KONSAUDITINFORM-Edition”, 2008.

2. “Further deepening our ongoing reforms and building civil society is a key factor

of our bright future.” Constitution of the Republic of Uzbekistan adopted by President

Islam Karimov his speech in a solemn ceremony dedicated to the 21st anniversary of

his birth. / People's questions, December 7, 2013.

3. https://stat.uz/uz/matbuot-markazi/e-lonlar/64-matbuot-markazi/5677-bu-qiziq

4. Child Rights monitoring. Instructional manual /responsible editor A.H. Saidov. –

Tashkent: National Human Rights Center of the Republic of Uzbekistan, 2011.

5. International treaties on human rights (total). – Tashkent: “Adolat,” 2004.

6. Constitution Of The Republic Of Uzbekistan – Tashkent: “O'zbekiston”, 2019.

7. Muminov A.R, Tillabayev M.A. Child rights: textbook/responsible editor

A.H. Saidov. – Tashkent: Publishing House “Adolat,” 2014.

8. Collection of documents of the law of the Republic of Uzbekistan. – Tashkent:

2008.

9. Child Rights monitoring. Instructional manual /responsible editor A.H. Saidov. –


10. https://strategy.uz/index.php?news=615&lang=uz

11. https://lex.uz/docs/-4302023

12. https://president.uz/oz/lists/view/973

13. https://m.kun.uz/uz/news/2019/05/30/prezident-qarori-respublika-ogil

Children's educational and educational institution-and-Republican-girl-children's

educational and Educational Institution-organized

14. Child Rights monitoring. Instructional manual /responsible editor A.H.Saidov. –


15. Abduvaliev, M. (2020) “Invalidity of agreements in civil law – an analysis of the

experience of Uzbekistan and Japan”, TSUL Legal Report International electronic

scientific journal, 1(1). https://www.legalreport.tsul.uz/index.php/journal/article/view/10

https://stat.uz/uz/matbuot-markazi/e-lonlar/64-matbuot-markazi/5677-bu-qiziq

https://strategy.uz/index.php?news=615&lang=uz

https://lex.uz/docs/-4302023

https://president.uz/oz/lists/view/973

https://m.kun.uz/uz/news/2019/05/30/prezident-qarori-respublika-ogil


42

16. Constitutional concepts of the right to freedom of movement from one place to

another and legal restrictions (example of registration system). Abduvaliev Maksudjon.

Review of law sciences. ООО «Grand Inter Media».


43

RECENT REFORMS AND NEW ADMINISTRATIVE COURT SYSTEM IN

UZBEKISTAN: CASE STUDY OF IMPLEMENTATION OF NEW LAWS

UDK: 342.9(042)(575.1)

ORCID: 0000-0003-3406-0784

Nematov Jurabek,

Associate Professor of the Administrative

and Financial Law Department

Tashkent State University of Law

Doctor of Sciences in Law,

[email protected]

A R T I C L E

I N F O

A B S T R A C T

Keywords:

Soviet-style

administrative justice,

administrative

litigation,

administrative

procedure, legal

education, the

Strategy Action

Judicial protection against individual and

normative acts of the public administration

continues to be problematic in Uzbekistan. One

central reason for this issue is the continuing

prevalence of Soviet-style ideas and patterns in

legal thinking, as well as legal practice. This

article describes the problems that jurisdictions

encounter in trying to overcome their Soviet

heritage by developing legal protection in



44

2017-2021,

administrative courts,

jurisdiction, case

study, textual

positivism, judge-

made law.

administrative matters, and analyses the

strategies for the improvement of this situation.

In this regard, there is a common perception in

post-Soviet countries 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 before an administrative penalty. Therefore,

it is quite difficult to develop administrative

justice without changing the misperception in

the understanding of administrative offences as

a part of administrative justice in Uzbekistan.

Importantly, the recent reforms taking place in

Uzbekistan give big hope to develop

administrative justice without including

administrative offence cases. It is a positive

move in the context of post-Soviet countries that

administrative justice has been delinked from

traditional Soviet administrative offence cases.

Relevantly, this paper explores (1) the main

reforms held on judicial review over

administrative acts in today’s Uzbekistan, and

(2) transformation points of judicial review.

Overall, I argue that Soviet thinking on judicial

review of administrative acts has a big change

in the legislation level under the new regime of

Uzbekistan. However, legal reforms are still not


45

accepted by legal practice, doctrine, and legal

education. Based on this, it should be

emphasized that the development of the

administrative law theory 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.

INTRODUCTION

Judicial review of 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 of administrative acts into Soviet

law. After the collapse of the Soviet

Union, in many post-Soviet countries, as

well as in Uzbekistan, legal thinking, and

practice in the field of judicial review of

administrative acts have not changed

substantially for a long time, which

causes problems in the realization of the

right to access to the courts and to a fair

procedure in court trials of administrative

cases. However, under the new regime

led by President Sh. Mirziyoyev, there

was a significant reform in legal system,

as well as in administrative law. Firstly,

we will describe 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


46

Uzbekistan (December 8, 1992)

guarantees to 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, which 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

any action of administrative bodies

without any exception. However, in

practise it was quite difficult to appeal to

the court in a number of 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 about the degree to

which they may review fact-findings and

interpret the law and the conclusions

reached by the administrative body.

Constantly, 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 analysed above are

mostly rooted in the Soviet past. Yet,

there are not only problems, but also

there are some hopes for change.

Newly elected President of the

Uzbekistan Sh. Mirziyoyev started to

build the New Uzbekistan and introduced

several administrative law reforms

according to the Strategy Action

2017‒2021 [3]. As a result, there were

introduced administrative court system,

and Concept of Administrative Reform

was adopted [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 Tashkent city, district (city)


47

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 amendments

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 meet

international standards.

Reforms regarding administrative

justice are going to be one of the

important ones in near future as well.

The Presidential Decrees dated

02.03.2020 No. PD-5953 and dated

24.07.2020 No. PD-6034 announced to

abolish administrative offense case

litigation from the administrative courts

and handle administrative offence case’s

litiga-tion to the criminal courts [11].

Since the Soviet period, the

administrative offence system has been

established as the main part of

administrative law. However, if we look

from the perspective 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 offence system

and administrative justice or at least

argue that the administrative offence

system is one of the parts of

administrative law [12; 13; 14].

In this regard, it is noticeably

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. For this reason,

the development of administrative justice

without changing the misconception of

administrative offences as a part of

administrative justice in Uzbekistan is

very difficult.

Importantly, the recent reforms

taking place in Uzbekistan are promising

for development of administrative justice

without including administrative offence


48

cases. In the context of post-Soviet

countries, a positive aspect is that

administrative justice is being delinked

from traditional Soviet administrative

offence 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.

Nevertheless, it should 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

embrace these changes.

Here is an analysis from judicial

practice where APL is used to some

extend.

Case Studies

It is difficult to generalize all main

features of legal practice in Uzbekistan,

but some tendencies of judicial practice

in which APL applied can be mentioned

by the following cases.

Case No. 1 [16]

The plaintiff farmer “E” appealed

to the regional economic court with a

claim to invalidate the decision of the

Sharof-Rashidovsky district municipality

No. 340 dated 02.21.2017. From the

materials of the case it turns out that the

plaintiff farmer “E”, on the basis of the

relevant decisions of the hokimiyat of the

Sharof-Rashidovsky district (formerly

Jizzakh district) No. 92 dated January

30, 2014 and No. 532 dated March 18,

2015 acquired 114.1 hectares of land for

livestock production. Based on the

instructions of the Jizzakh region’s

prosecutor’s office, the Office of Land

Resources and the State Cadastre of

Jizzakh region submitted to the hokimiyat

of the Sharof-Rashidovsky district

(formerly Jizzakh region) submission

No. H/71 dated 03.11.2016 on bringing

the above decision into line with the

legislation of the Republic of Uzbekistan.

On 03.03.2016, this idea was discussed

at the general meeting of the district

hokimiyat and on the basis of the idea

considered, the decision of the hokim

No. 340 of 02.21.2017 on canceling the

decision No. 532 of 03.18.2015,

respectively, 114.1 hectares of land was

returned to the district land fund.

In accordance with the Regulation

“On the procedure for granting land plots


49

for long-term lease to farmers,” approved

by the Resolution of the Cabinet of

Ministers of the Republic of Uzbekistan

No. 476 dated 10.30.2003, an application

for the provision of land plots with an

annex of a business plan or program of

activity of the farm being created, as well

as an annex of the relevant documents

are submitted to the hokim of the district

within a month from the date of the

announcement of the tender. Statements

of citizens are subject to registration in

a special journal. Although the farmer “E”

argued that he had submitted all the

relevant documents, there was no

supporting document in the special

journal.

In addition, in accordance with

Paragraph 10 of the Regulation “On the

procedure for determining the winner of

the tender for the allocation of land for

farming,” approved by the Resolution of

the Minister of Agriculture and Water

Resources of the Republic of Uzbekistan

(registered by the Ministry of Justice on

November 19, 2005, reg. No. 1523), it

was established the procedure for the

provision of land for farming. In

particular, the relevant commission

should organize a competition and draw

up its decision with the protocol of the

commission. In addition, in accordance

with Paragraph 36 of the Regulation, in

the case of the participation of a single

applicant, it is necessary to conduct a

second competition after the expiration of

the competition. However, the above

requirement of Paragraph 36 of the

Regulation of the district hokimiyat

(district hall) was not fulfilled.

Besides, in accordance with

Paragraph 6 of the Regulation “On the

procedure for optimizing the size of the

land plot of a farm and its liquidation,”

approved by the Resolution of the

Cabinet of Ministers of the Republic of

Uzbekistan No. 22 of 01.31.2013, it is

necessary to conclude a district

commission when making a decision on

the allocation of land by the hokim

(mayor). This requirement of the

Regulation was also not complied with.

Moreover, Article 38 of the Land

Code of the Republic of Uzbekistan in

violation of land legislation provides

for the seizure of land. In particular,

Article 38 of the Land Code establishes

that in the cases provided for in clauses

6–11 of the first part of Article 36 of the

Land Code, as well as in other cases of

violation of land legislation, the body

exercising state control over the use and

protection of land, after warning the

landowner or land user, submits to the

body that provided the land plot, an idea

about the seizure of the land plot. The


50

body that provided the land, on the basis

of the submission, within one month

makes a decision on its seizure.

In accordance with Article 12 of

the (former) Economic Procedural Code

of the Republic of Uzbekistan, the

economic court, having established

during the discrepancy case

consideration of an act of a state or other

body with the law, including its

publication in excess of authority, takes a

decision in accordance with the law. In

addition, in accordance with Article 55 of

the (former) Economic Procedural Code,

when considering disputes on

invalidating acts of state and other

bodies, the obligation to prove the

circumstances that served as the basis

for the adoption of these acts is assigned

to the authority that adopted the act.

Based on the foregoing, the

regional economic court dismissed the

claim for invalidating the decision of the

Sharof-Rashidovsky district hokimiyat

No. 340 of 02.21.2017.

– Comment on the case No. 1 –

Of course, many different

questions for reflection arise in this case.

However, let us dwell only on the

question concerning the principle of trust

protection that mentioned in Article 16

of APL.

This principle is introduced in the

legislation of the Republic of Uzbekistan

for the first time. Article 16 of the APL

consists of two parts.

In the first part, the following terms

(phrases) are given: an interested

person, acting in good faith, trust in an

administrative act, and protection by law.

It is necessary to disclose the

meaning of these terms.

Interested party ‒ a person to

whom the adopted administrative act or

administrative action is addressed, as

well as whose rights and legal interests

are affected or may be affected by the

administrative act or administrative

action (Article 4 of the APL)

Acting in good faith means that

there are no signs of dishonesty, namely

adopted in Part 7 of Article 59 APL.

The trust of the interested person

is not subject to protection if:

the person concerned has not

fulfilled additional obligations related to

the administrative act;

the person concerned did not use

for the intended purpose the funds, thing

or right provided to him on the basis of

an administrative act;

the person concerned knew about

the illegality of the administrative act or

did not know about it through his own

fault;


51

an administrative act was adopted

as a result of fraud, threats or other

unlawful influence on an administrative

authority;

the law requires the abolition of an

administrative act without taking into

account the protection of the trust of

interested parties (Part 7 of Article 59

of APL).

This means that signs of bad faith

are grounds for refusing implementation

of the principle of protection of trust.

Apart from this, in the application

of the principle of protection of trust, it is

necessary to consider the public interest.

Part 9 of Article 59 of APL

establishes, “Regardless of the trust of

the person concerned, an administrative

act recognized as not complying with the

law may be repealed by the

administrative body if its preservation

poses a threat to the public interest.”

Confidence in an administrative

act means that the interested person

trusts the validity of this act and believes

that it is legal and acts in accordance

with this act.

Protection by law means that if

there are any inconsistencies and

grounds for the illegality of an

administrative act, then the law primarily

protects the bona fide trust of a person

who relied on the legal force of an

administrative act.

In cases where the public interest

exceeds the interest of the addressee

and preservation of the administrative act

harms the public interest, then the

administrative act is cancelled and the

damage is compensated to the

addressee. Hence, fair compensation for

the consequences of cancelling the

administrative act is carried out.

These rules are established in

parts 10-11 of Article 59 of APL. In

particular, it is atates: “The interested

person shall be compensated for

property damage that has arisen or has

become inevitable due to trust in the

legal force of an administrative act.

Compensation for property damage

should not exceed the amount of the

benefit that was due to the person

concerned in the content of the

administrative act. A claim for

compensation for property damage may

be filed within one year from the moment

the interested person is notified of the

cancellation of the administrative act.”

However, if the public interest

does not exceed the interest of the

addressee and the preservation of the

administrative act does not harm the

public interest, then the administrative


52

act can be preserved and there is no

need for compensation.

Of course, it is difficult to imagine

all the circumstances of above

mentioned case No. 1, but suppose that

the plaintiff farmer “E” acted in good faith

and by mistake of the hokimiyat, as can

be seen from the above circumstances of

the case, violated several norms of land

legislation. Based on the principle of

protecting trust, the interests of the

farmer “E” should be respected and

protected; accordingly, he should not be

deprived of bona fide land.

Here is another example from

judicial practice.

Case No. 2 [17]

The applicant of the ANOR LLC

JV appealed to the court with the

defendant in the Tashkent city hokimiyat

on invalidating the decision of the

Tashkent city hokim dated May 27, 2019

No. 763 to cancel Paragraph 8 of the

Annex to the decision of the Tashkent

city hokim for No. 85 dated January 18,

2018, and assign the responsibility to the

hokim of the city of Tashkent to resolve

to cancel the decision No. 763 dated

May 27, 2019, and uphold the decision of

the hokim of Tashkent city No. 85 dated

January 18, 2018 in the previous edition.

As seen from the case materials,

the decision of the hokim of the city of

Tashkent dated January 18, 2018 for

No. 85 of SAVDO LLC allocated a

building located next to the non-

residential premises at the address:

Tashkent city, Mirabad district, Mirabad

str., 27/10, with adjoining territory (Liter

0001, 0002) as compensation for a

building demolished for state and public

needs.

Based on agreement No. 427 of

February 15, 2018 between SAVDO LLC

and the Department for the use of

buildings and structures of the Tashkent

city hokimiyat, as well as the above-

mentioned decision of the Tashkent city

hokim, buildings located near house

No. 27/10 along Mirabadskaya street on

area of 0.3000 hectares under a single

cadastral number 101101020205900001

-letter 0001 is a one-story building with a

total area of 342 sq.m., and letter 0002 is

a one-story building with a total area of

91.0 sq.m. transferred to the ownership

of SAVDO LLC, about which a certificate

was issued for TS 0351191.

According to the contract of sale

dated June 11, 2018, concluded between

SAVDO LLC and ANOR LLC JV,

the specified object was sold to ANOR

LLC JV.

Further, on May 15, 2019, the

Tashkent city prosecutor's office

protested the cancellation of Paragraph 8


53

of the decision of the Tashkent city

governor No. 85 of January 18, 2018,

regarding the allocation of the building

located next to the non-residential

premises at the address: Tashkent city,

Mirabad district, Mirabad street,

27/10, with an adjacent territory (Liter

0001, 0002).

In pursuance of this protest, on

May 27, 2019, the hokim of the city of

Tashkent adopted decision No. 763 to

satisfy the protest of the prosecutor of

the city of Tashkent and the cancellation

of Paragraph 8 of the Annex to the

decision of the hokim of Tashkent city

No. 85 dated January 18, 2018.

As seen from the case materials,

by the decision of the Tashkent city

hokim No. 763 dated May 27, 2019, the

protest of the Tashkent city prosecutor

on the cancellation of Paragraph 8 of the

Annex to the decision of the Tashkent

city hokim No. 85 dated January 18,

2018 was satisfied.

The reason for the cancellation of

Paragraph 8 of the Annex to the decision

of the hokim of Tashkent city No. 85

dated January 18, 2018 indicated that

the area of the building located next to

the non-residential premises at the

address: Tashkent city, Mirabad district,

Mirabad street, house No. 27/10 is

440 sq.m., which did not pass state

registration in the State Enterprise “Land

Management and Real Estate Cadaster

Services” of Tashkent. In addition, the

allocated building did not have an

adjacent territory. When allocating the

building with the adjacent territory, it was

not taken into account that there was no

adjacent plot to the building in the given

territory, the area of the allocated land

plot was not indicated, and the

underground facility “bomb shelter” was

located on the border of the building.

Thus, when allocating a building with an

adjacent territory, the requirements of the

Regulation “On the procedure for the

provision of land in settlements for urban

planning, design and registration of

construction projects, as well as

acceptance for operation of objects,”

approved by the Resolution of the


Uzbekistan dated February 25, 2013

No. 54, and the Resolution of the


Uzbekistan dated August 22, 2008

No. 189 “On measures for further

improving the procedure for the provision

of land in the city of Tashkent and their

intended use” were violated.

Disagreeing with the above

decision of the hokim of the city of

Tashkent, the applicant appealed to the

court with this statement.


54

During court litigation it was stated

that, in accordance with the letter of the

Emergency Management Department of

the city of Tashkent dated April 8, 2018

No. 730, SAVDO LLC is forbidden to

dismantle buildings located above the

bomb shelter due to the fact that

construction work can lead to the

destruction of the integrity of the bomb

shelter.

According to the Consolidated

Expert Opinion of the Tashkent City

Branch of the State Unitary Enterprise

“Urban Planning Expertise” under the

Ministry of Construction of the Republic

of Uzbekistan dated May 1, 2019

No. 311, the location near the bomb

shelter being built does not create any

obstacles for construction that does not

touch the borders of the shelter.

– Comment on the case No. 2 –

The above-mentioned example,

one can also consider applying the

principle of trust protection. The public

interest is not to erect a building near the

bomb shelter. The interest of the

addressee is to maintain the validity of

the administrative act and to obtain fair

compensation in cases of cancellation of

the administrative act.

However, from the above it can be

stated that “the location next to the bomb

shelter under construction is not creating

any obstacles to construction that does

not touch the borders of the bomb

shelter.”

Consequently, the question of the

application of Part 9 of Article 59 of the

APL may not be considered.

The next issue is dishonesty. In

this case, it can be stated that there are

no signs of bad faith.

Therefore, it can be assumed that

the preservation of an administrative act

that does not contradict the public

interest that did not entail the fault of the

addressee complies with the rules of

article 59 of the APL.

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

pressing legal issues today. Research

shows that the newly established

administrative courts of Uzbekistan,

conditionally speaking, 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


55

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,

is 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 [18]. Courts do not

consider their role as being to ensure

respect for the right to access to the

courts and guarantee the constitutional

rights and freedom. In other words,

courts in Uzbekistan are not conscious of

protecting constitutional rights and

freedoms of citizens. It seems that it is

not the court’s function, but rather, it is

the procuracy’s function to protect the

civil 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 [19]. One of the reasons

for this problem stems 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, limited access

to court practice and insufficiency of legal

training on administrative litigation and

administrative law in general.


56

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 the system of

legal education further and introduce

new methods of analytical legal

education as well as case study [20].

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 [21].

First of all, legal education should

be reformed in a way which favors

protecting rights and freedoms of citizens

and legal entities. Further emphasis

should be given to analytical case law

study, based on legal argumentation and

statutory interprettation. 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

offence 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 case study

of researching administrative court

decisions, the importance of developing

substantive administrative law, and


57

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.

Finally yet importantly, the role of

international donor organizations and

partner universities is enormous in this

process [22, 23, 24, 25, 26, 27, 28, 29,

30, 31, 32, 33, 34, 35, 36, 37, 38].

Conducting a joint comparative

study, publishing textbooks, organizing

conferences, workshops and trainings

would facilitate interactive dialog, and

inspire all concerned actors, eventually,

may lead to the overall improvement of

access to justice and development of

business activities and entrepreneurship

in Uzbekistan.


58

REFERENCES

1. “Everyone shall be entitled to legally defend their rights and freedoms, and shall

have the right to appeal any unlawful action of state bodies, officials and public

associations.” (Article 44 of the Constitution of Uzbekistan). For the English translation

of the Constitution of Uzbekistan cf. http://gov.uz/en/constitution/#a1836 (accessed on

01.09.2020). In this paper, the term „administrative litigation” is used to indicate the

judicial review over administrative acts as guaranteed by article 44 of the Uzbek

Constitution.

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. PD-4947 “On the Strategy for Action for the Further Development of the Republic of

Uzbekistan.” [In Russian].

4. Decree of the President of the Republic of Uzbekistan dated 08.09.2017

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No. PD-4966 “On measures fundamental improve the structure and increase the

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Approval of the Administrative Litigation Code of the Republic of Uzbekistan,” enter into

force from 01.04.2018. [In Russian].

http://gov.uz/en/constitution/#a1836


59

10. Of course, it is too early to say that the Uzbekistan’s APL is one of the

foremost, since the analysis of this law shows that the APL can be attributed to the first

generation of laws on administrative procedures. See for generation of laws on

administrative procedures: (cf. Javier Barnes (2010). Towards a third generation of

administrative procedure. \\ Susan Rose-Ackerman, Peter L. Lindseth. Comparative

administrative law: an introduction. // Comparative Administrative Law. Susan Rose-

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the Year of the Development of Science, Education and the Digital Economy” (National

Database of Legislation, March 3, 2020, No. 06/20/5953/0246). [In Russian].

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Uzbekistan, “Adolat,” 1998. P. 214. [In Russian].

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14. E.T. Hojiyev (2010). Administrative law. Textbook for professional colleges,

“SCIENCE,” 2010. P. 204. [In Uzbek].

15. The existence of the procuracy supervision is also one of the factors that make

administrative justice difficult to reform in Uzbekistan. Currently, both the procuracy and

the administrative courts try not to give up their jurisdiction on controlling administrative

bodies. Consequently, the introduction of legal reforms in administrative justice meets

difficulties and even open resistance because they may cause a loss of control over

administrative bodies in favour of either the procuracy or the administrative courts. In

that regard, it would be logical if the rules (article 46 of CAL) allowing the participation of

the prosecutor in administrative litigation were liquidated in near future.

16. Решение Хозяйственного суда Джизакской области Республики

Узбекистан от 24.05.2017 (Извлечение). (Decision of the Commercial Court of the

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60

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Republic of Uzbekistan: posing the question. //“Administrative justice: to the

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30. 外国法制・実務外国法導入と法的実務ウズベキスタンにおける新しい行政法

改革: 行政手続法の新原則である信頼保護の原則の適用を例に. ジュラベック,ネマトフ

– ICD news: 法務省法務総合研究所国際協力部報, 2020(6). 51-58. (Nematov J. (2020).

New administrative law reforms in the Uzbekistan: in example of application of

protection of the trust as a new principle of administrative procedure law. ICD news

2020(6). 51-58. [In Japanese]).


62

31. ウズベキスタン行政法における新改革: 課題とその解決 (特集ウズベキスタン

における行政法改革). J. Nematov ‒ ICD news: 法務省法務総合研究所国際協力部報,

2018(6). 29-38. (Nematov J. (2018). New administrative law reforms in Uzbekistan:

problems and their solutions. ICD news 2018(6). 29-38. [In Japanese]).

32. ウズベキスタンにおける行政裁判制度の法的諸問題 (6・完) 旧ソ連における行

政に対する司法審査との比較研究. ネマトフジュラベック - 名古屋大学法政論集,

2017(271). 127-155. (Nematov, J. (2017). Legal Problems of the Judicial Review on

Public Administration in the Uzbekistan. A Comparative Study in Judicial Review on

Public Administration in the former Soviet Union-(6). Journal of Law and Politics, (271),

127-155. [In Japanese]).

33. ウズベキスタンにおける行政裁判制度の法的諸問題 (5) 旧ソ連における行政に

対する司法審査との比較研究.ネトマフジュラベック - 名古屋大学法政論集, 2016 (268).

247-269. (Nematov, J. (2016). Legal Problems of the Judicial Review on Public

Administration in the Uzbekistan. A Comparative Study in Judicial Review on Public

Administration in the former Soviet Union-(5). Journal of Law and Politics, (268), 247-

269. [In Japanese]).


対する司法審査との比較研究.ネマトフジュラベック - 名古屋大学法政論集, 2016 (267).

161-192. (Nematov, J. (2016). Legal Problems of the Judicial Review on Public





対する司法審査との比較研究.ネマトフ,ジュラベック - 名古屋大学法政論集, 2015

(263). 323-356. Nematov, J. (2015). Legal Problems of the Judicial Review on Public





対する司法審査との比較研究. ネマトフ,ジュラベック - 名古屋大学法政論集, 2015

(261). 195-224. (Nematov, J. (2015). Legal Problems of the Judicial Review on Public



63



37. ウズベキスタンにおける行政裁判制度の法的諸問題: 旧ソ連における行政に対

する司法審査との比較研究. N Jurabek – 2014. (Nematov, J. (2014). Legal Problems of

the Judicial Review on Public Administration in the Uzbekistan. A Comparative Study in

Judicial Review on Public Administration in the former Soviet Union. [In Japanese]).

38. ネマトフ, ジ., Nematov, J. (2014). ウズベキスタンにおける行政裁判制度の法

的諸問題（1）:旧ソ連における行政に対する司法審査との比較研究. 名古屋大学法政論

集, 2014 (259). 247-275. (Nematov, J. (2014). Legal Problems of the Judicial Review on

Public Administration in the Uzbekistan. A Comparative Study in Judicial Review on

Public Administration in the former Soviet Union-(1). Journal of Law and Politics, (259),

247-275. [In Japanese]).


64

ORIGINS OF PUBLIC CONTROL IN UZBEKISTAN AND THE

PROBLEMS OF ITS DEVELOPMENT

UDK: 347.471(042)(575.1)

Xabibullayev Azizillo Lutfullo o‘g‘li,




A R T I C L E

I N F O

A B S T R A C T

Keywords:

public control,

corruption, forced

labor, bureaucracy,

social order.

This article examines public control as a solution

to the problems in our society. It is devoted to

the foundations of its formation and the

problems which hinder its development. The

article also covers several laws, signed by the

government, on the development of public

control and its goals and objectives.

INTRODUCTION

Today, the role of public control is

invaluable for the effective functioning

of public authorities and the rapid

development of the country, as well as

for solving the most pressing issues of

public life. It is clear that a lot of work has

been done to develop public control

under the motto of head of the state:

“Now the initiator of reforms will be

society, not the state, and the people will

evaluate the activities of leaders.”


65

Of course, the question naturally

arises, what is meant by public control,

and why do we need it?

There are various definitions of

public control. It would be more

appropriate to use the following

definition, which covers the main

features of public control: “Public control

is the activity of public associations to

determine and assess the compliance of

public authorities and administration with

applicable law.” Article 32 of the

Constitution of the Republic of

Uzbekistan on public control states that

citizens of the Republic of Uzbekistan

have the right to participate in the

management of public and state

affairs directly and through their

representatives. Such participation is

achieved through self-government,

referendums and the democratic

organization of state bodies, as well as

the development and improvement of

public control over the activities of state

bodies. The procedure for exercising

public control over the activities of state

bodies shall be established by law.

Problems those has existed for

many years: corruption, employment,

forced labor of local government officials

in violation of the law (education,

medicine), the negative impact on the

economic development of the country,

the attitudes of the population must be

controlled.

As important as social order is to

humanity, ensuring it remains a

challenge. Therefore, sages at all times

have asked the question: “How do we

bring order to society?” Moreover, they

have tried to find an answer to this

question. The Greek philosopher Plato,

in his book “State,” sought the answer to

this question and said that for there to be

order in society, society must be ruled by

an intellectual elite. Aristotle, in his book

“Politics,” wrote that “for there to be order

in society, the middle class must be

strong.” Eastern sages saw the answer

to this question in spiritual heights. Both

in the teachings of Confucius and in the

works of Abu Nasr al-Farabi, the

establishment of social order is seen in

connection with spiritual heights. Despite

human efforts to establish social order,

this problem has not yet been resolved.

Public control can be cited as the

only solution to these problems. Great

scholars and philosophers have also

argued for the need of public control over

the activities of public administration

bodies. For example, in his works,

Aristotle considered the control of the

people over officials and rulers as one of

the most important conditions for the

political stability and prosperity of the


66

state. Abu Nasr al-Farabi's book “The

city of the noble men” also emphasizes

the need for rulers to be accountable to

the people and to obey the law. Charles

Montesquieu argues that society cannot

exist without government, but that

existing laws allow citizens to control

government activities.

The President of the Republic of

Uzbekistan has signed several laws and

resolutions on the coordination of public

control. They are “On Public Control” of

April 12, 2018 and the Resolution of

October 4, 2019 “On additional

measures to increase the effectiveness

of public control over socio-economic

reforms in our country, as well as the

active participation of citizens in

democratic change.” This was a key step

in the development of public control in

Uzbekistan. These laws are an important

condition for effective involvement of the

population in the management of public

and state affairs; improving the

legal culture and legal literacy of

citizens; development of civil society;

transparency of public administration;

effective decision-making in the


public policy.

The rapid pace of socio-economic

and socio-political development of the

country was aimed at increasing the

role of citizens, non-governmental

organizations and other institutions of

civil society in the management of

society and public affairs.

Relevant decisions and

recommendations have been made at

the state and parliamentary levels. On

their basis, regional, district, city councils

of people's deputies, councils of public

control under mahallas were formed.

However, in practice, these structures do

not give the expected results. Because

we still have a very weak idea about the

content of public control. It is done by

citizens, from below. However, this

control should not be understood only as

control over the activities of senior and

junior officials, local authorities, law

enforcement officials.

It is the duty of every citizen to

maintain order in society, to respect and

obey the laws. This duty consists, first of

all, in the internal discipline of each

individual, and it must be formed from

childhood. If a person is accustomed to

discipline at home and at work, he

cannot remain indifferent to failures and

gaps in society. He feels that he has a

duty to eliminate them.

The problem is not solved by

complaining that the state bodies, the

organizations responsible for this or that

area do not listen to our complaints:


67

there is no water, gas, electricity, or the

road is damaged. The society should

take control over the implementation not

waiting to see what happens after

applying to the relevant organizations,

and, if necessary, through its supervisory

board to ensure that the issues are

discussed at sessions of the Oliy Majlis

and local councils.

Public control means the active

participation of citizens in the elimination

of shortcomings, as well as the

notification of the relevant authorities for

their correction. Public control is

especially important during today’s

pandemic period.

CONCLUSION

In conclusion, the corruption,

bribery, bureaucracy, indifference, and

irresponsibility that hinder development,

will never end if citizens do not take an

active part in society, and if they think

that discipline and control over law and

order are only the jobs of government

agencies. When it comes to an active

civil position in society, to say, “I have

nothing to do with it, I am not hungry, I

am calm,” is selfishness. The foundation

of a free and democratic state will be

stronger only if all members of society

feel equally responsible for the wellbeing

of their lives.


68

REFERENCES

1. The Constitution of the Republic of Uzbekistan.

2. Abu Nasr al-Farabi's work “The city of the noble men.”

3. The Law of the Republic of Uzbekistan dated April 12, 2018 “On Public Control.”

4. Resolution of the President of the Republic of Uzbekistan dated October 4,

2019 “On additional measures to increase the effectiveness of public control over socio-

economic reforms in the country, as well as the active participation of citizens in

democratic change.”

5. Abduvaliev, M. (2020) “Invalidity of agreements in civil law ‒ an analysis of the



6. CONSTITUTIONAL CONCEPTS OF THE RIGHT TO FREEDOM OF

MOVEMENT FROM ONE PLACE TO ANOTHER AND LEGAL RESTRICTIONS

(EXAMPLE OF REGISTRATION SYSTEM). Abduvaliev Maksudjon. Review of law

sciences. ООО «Grand Inter Media».

Internet sources

1. https://lex.uz/

2. http://zarnews.uz/

3. https://www.uza.uz/

https://www.legalreport.tsul.uz/index.php/journal/article/view/10


69

SOME ASPECTS OF JUDICIAL PROTECTION OF CHILDREN'S RIGHTS

IN UZBEKISTAN

(THEORY AND PRACTICE)

UDK: 347.63(042)(575.1)

Dusmukhamedova Nargiza Noufarbekova,


of the Academy of Public Administration

under the President of the Republic of Uzbekistan;


A R T I C L E

I N F O

A B S T R A C T

Keywords:

children, children with

disabilities, troubled

families, children left

without parental care,

social adjustment,

court rulings,

rehabilitation

programs, child rights,

child psychology,

This article discusses some of the

issues of judicial protection of children’s rights

in Uzbekistan, powers of state authorities and

administration to protect the rights of the child;

improvement of mechanisms for implementing

the decisions of national commissions and

structures on the protection of children's rights

in the national order; development of legal

norms on protection of children’s rights;

expanding the powers of the bodies


70

pedagogy, vulnerable

groups of children.

implementing it in practice, enhancing the

powers of courts in the implementation of

existing legal norms on the child rights,

establishment of special rules for conducting

other court proceedings on the basis of foreign

experience in this area.

INTRODUCTION

A child is the most blessed and

perfect, the supreme miracle of the

Creator, who fills the hearts with a sense

of peace and gratitude, ensures the

continuity of a family and society, serves

the formation of equality and unity, love

and affection in family relations.

It is no secret that every state

and society in its development has

achieved the goals of development

and prosperity through the upbringing of

children and the conditions and

opportunities created for them.

In our country, from the first years

of independence, the interests of the

younger generation have been identified

as a priority, and the protection of

children's rights and their development

as full-fledged adults has been

precedence at the state policy level.

As the President of the Republic of

Uzbekistan Sh.M. Mirziyoуev noted: “It is

always important for us to nurture our

children as independent-minded, well-

versed in modern knowledge and

professions, with a strong life position,

truly patriotic people.” [1, p. 189]

Improving the effectiveness of

upbringing a spiritually mature and

physically healthy generation, ensuring

full social adaptation of children with

disabilities, children from troubled

families or children left without parental

care, the need to care for this category

of children as a prerequisite for

strengthening the spiritual and moral

foundations of society inculcation in the

public consciousness is one of the most

pressing problems of our time.

The following criteria are

important in addressing these issues,

namely the study of children's social

adaptation, the development of targeted

programs to address these issues, as

well as the negative impact of factors

that lead to the emergence of socially

and legally dangerous groups among

children. Moreover, in-depth study and

generalization of the experience of the

country in the field of support and social

adaptation of vulnerable children, the


71

experience of developed countries, the

development of proposals for their use in

the practical activities of government and

non-government institutions are crucial to

solving these problems.

In this regard, the following is

necessary: the study of the system

of training and retraining of specialists

working with children; the development

of comprehensive programs to improve

the efficiency of the system, taking into

consideration modern requirements

and standards; interaction with social

protection institutions on social issues

with children and families; social work

education improvement of standards;

strengthening the status of “social

worker” in the system of social protection

of children; effective use of the practice

of organizing practical assistance

to children by social workers through

the implementation of psychological,

pedagogical, educational, rehabilitation

programs. Furthermore, it is important to

provide educational and advocacy

activities on child social adaptation

through the protection of children's rights;

the research results of child psychology,

as well as developmental psychology,

pedagogy, medicine, and support for

vulnerable groups of children; and

introduction of international experience in

social adaptation; innvolvement of all

stakeholders in the solution of adaptation

issues, and improvement of legal norms

aimed at regulating these relations.

Protection and implementation of

child rights are one of the priorities of the

state, as well as one of the important

tasks before international community.

Therefore, along with government

agencies and institutions responsible for

the protection of children’s rights,

as well as non-governmental and non-

profit organizations work in unity and

cooperation.

In particular, Article 5 of the Law


Guarantees of the Rights of the Child”

No. 139 of January 7, 2008, [2] the

powers of public authorities to ensure the

rights of the child have been

strengthened. Thus, public authorities,

within the scope of their responsibilities,

exercise the following powers: the

formation and implementation of a

unified state policy on the rights of the

child; setting priorities for the protection

of the rights of the child; the development

and implementation of state programs

and regional programs to enforce

legislation; ensuring the rights, freedoms

and legitimate interests of children;

coordination and control of state bodies

for the protection of children's rights,

children's institutions, organizations;


72

imple-mentation of state policy on the

protection of children's rights; financing

activities on the issue at the expense of

the State budget of the Republic of

Uzbekistan and other sources not

forbidden by the legislation. It is also

necessary to take measures to

strengthen the material and technical

base of state children’s institutions and to

promote the development of non-

governmental children’s institutions, to

address issues of supporting children

in need of protection, to monitor the

implementation of the international

obligations of the Republic of Uzbekistan

on children’s rights, and to represent the

interests of the Republic of Uzbekistan in

international organizations.

Public authorities, as well as

public administration may exercise other

powers under the legislation.

In order to ensure the protection

of the rights, freedoms and legitimate

interests of children, to coordinate the

activities of state bodies and other

bodies, organizations responsible for the

protection of children’s rights, an

authorized body for the children’s rights

may be established in the manner

prescribed by law.

Article 6 of this law strengthens

the powers of citizens to participate

in ensuring the rights of the child in

self-government bodies and non-

governmental as well as non-profit

organizations, which include: self-

government bodies of citizens, and

non-governmental organizations and

non-profit organizations which assist a

child in the realization and protection of

his or her rights, freedoms and legitimate

interests, as well as they provide legal,

methodological, informational, and other

assistance to children or their legal

representatives.

Participation of citizens in self-

government bodies, non-governmental

and non-profit organizations in the


state programs and regional programs

to ensure the rights, freedoms, and

legitimate interests of children,

methodological support from the

state and international organizations,

organizational and financial support.

From the above, it is clear that these

organizations do not have the authority

to issue and enforce decisions and

rulings on the protection and insurance

of the rights of the child.

Article 2 of the Law of the

Republic of Uzbekistan “On Courts” as

amended on December 14, 2000,

No. 162-II [3] says: “In the Republic of

Uzbekistan, the judiciary is called upon

to protect the rights and freedoms of


73

citizens, the rights and legally protected

interests of enterprises, institutions and

organizations, as enshrined in the

Constitution and other laws of the

Republic of Uzbekistan and international

human rights instruments.”

The activities of the court are

aimed at ensuring the rule of law, social

justice, peace, and harmony of citizens.

Article 5 of this law also

strengthens the binding nature of judicial

acts, which are binding on all state

bodies, public associations, enterprises,

institutions and organizations, officials,

citizens and should be enforced

throughout the territory of the Republic of

Uzbekistan.

The powers of the bodies and

institutions responsible for the protection

and promotion of child rights, and the

issue of the effectiveness of the work

they do, have always been considered

controversial by theorist-scholars and

practitioners. In particular, at the

98th Plenary Session of the Venice

Commission on the Rights of the Child,

which took place on March 21-22, 2014

on the subject “Оn the protection of

children’s rights: international standards

and domestic constitutions” according to

an analytical report prepared by

Christoph Grabenwarter, Jan Helgesen,

Anne Peters, Ursula Kilkelly, Herdis

Thorgeirsdottir, Anne Lindboe, Conor

O’Mahoni: “The work done by

international organizations and volunteer

foundations responsible for the

protection of children’s rights is certainly

commendable and it is important to note

that the existing problems in ensuring the

implementation of decisions by all

member states are resolved in

accordance with international standards,

but the mechanisms for implementing the

decisions of national commissions and

struc-tures on the protection of children’s

rights remain open, and the most

appropriate and reliable mechanism

protection, as non-execution or

obstruction of the execution of court

decisions shall give rise to liability in

accordance with the requirements of the

law.” [4]

Ton Lifaard, a researcher on

improving child protection mechanisms,

wrote in his thesis “Access to Justice for

Children: Towards a Specific Research

and Implementation Agenda” that

international normative documents on

the rights of the child are of a

recommendatory nature, and the rights

of the child can be achieved and

protected only if the State Party

adopts clear substantive and procedural

norms and enforces them by force of

law, otherwise the decisions of state


74

bodies and responsible organizations

may not be recognized or performed as

required [5].

In support of the views of foreign

experts mentioned above, it is worth

noting the following. The state bodies

and institutions responsible for the

protection and enforcement of the rights

of the child, including the supreme

executive body, in addition to exercising

the power to prepare and implement

normative legal acts, provide for

administrative liability for failure to

perform the tasks outlined in this

normative act. Action or inaction entails

administrative liability in the prescribed

manner, the deviant consequences

resulting from action or inaction shall, in

no case, be assessed based on a court

decision and a penalty imposed. It is

clear that the clearest and most

appropriate way to ensure the rights of a

child is to resolve them in court, so it is

possible to define the scope of

responsibilities of state bodies or public

organizations by specifying the

mechanisms of appeal to the court in

certain cases.

G.Sh. Atalykova, who studied on

the adoption of children and on the issue

of children’s rights in her research work

follows: “Protecting the rights and

interests of children, motherhood, and

childhood, supporting the up-bringing of

every child in a family is an important

public policy of any country that

recognizes these democratic principles.

In this regard, the judiciary is an

independent body that ensures the rights

of children through the implementation of

laws and has practical mechanisms; this

can only be confirmed by a court

decision that children can be

adopted.” [6, p. 4]

Without denying researcher

G.Sh. Atalykova's views, we would like to

note that the role and importance of the

judiciary in educating the rights and

freedoms of children is invaluable, but

the courts may not always make

decisions that are in the interests of

children. The knowledge and skills of the

judge hearing the case, especially the

experience, are important role in this

respect. In this regard, it should be noted

that in some foreign countries,

specialized courts have been established

to hear family disputes, especially those

related to the upbringing of children.

It is also necessary to improve

certain types of litigation set out in the

Code of Civil Procedure of the country in

terms of protection of children’s rights.

Notably, H. Kuchkarov, who researched

on this issue, stated in his research work:

“For example, it is necessary not to apply


75

external decision-making in divorce

cases. Because here the fate of the

family, which is an important part of

society, and the children in it is decided.

It is not fair for a spouse to make a

decision in absentia at a court hearing on

the grounds that the defendant did not

appear at the hearing without a thorough

examination of the relationship between

the couple and the necessary steps to

reconcile them.” He also emphasized

that this is contrary to the best interests

of children [7, p. 143].

Researcher Sh. Ismailov, in his

scientific work focused on the specifics of

the application of the law to certain

categories of employees, puts forward

the view stating: “Differentiated norms

can be confronted with conflicting

situations even within themselves. For

example, the head of an enterprise may

be dismissed by the owner on additional

grounds provided for in the employment

contract, and if the head of the enterprise

is a woman and there are cases of

pregnancy or childcare, the question

arises as to which differentiated norm to

apply. In this case, it would be

appropriate to give the question of which

norm to give priority in the explanations

of the judicial authorities.” [8, p. 53]

The above examples show that

the development of a legal norm on the

protection of the rights of the child, rather

than the methodology of expanding the

powers of law enforcement agencies, the

expansion of the powers of courts in the

implementation of existing legal norms

on the child rights of should be based on

foreign experience.

It is necessary to appoint

experienced judges to conduct court

cases related to the child element and to

include relevant norms in the procedural

legislation. Because in practice, there are

cases when a judge's interpretation and

application of the rule of law to the real

situation may harm the rights of the child.

We will try to prove this situation with the

following practical examples.

Plaintiff N.I. filed a lawsuit against

defendant A.I., by requesting the

determination of the place of residence

of his three minor children and the

recovery of alimony for their

maintenance.

The claim was partially satisfied

by the decision of the Inter-District Civil

Court of September 5, 2018, and the

custody of children (A, born in 2007, B,

born in 2009, and S, born in 2011) was

awarded to their mother, N.I., for their

financial support of A.I’s monthly salary

and other income. ½ of the amount is to

collect alimony until the children reach

the age of majority.


76

By the appellate decision of first-

instance dated October 9, 2018, the

decision was upheld.

By the ruling of the Judicial Board

dated October 23, 2019, the court

decisions were annulled on the

following grounds and a new decision

was made to reject the claim.

It was established that N.I and A.I

were legally married on June 14, 2006.

The couple has four children, A, born in

2007, B, born in 2009, C, born in 2011,

and N, born in 2017.

They have been living separately

since February 2018 due to a family

dispute. Prior to filing the lawsuit, A,

born in 2007, B, born in 2009, and S,

born in 2011, lived in a separate house

with their father, A.I., and N, born in

2017, lived with N.I.

The courts based their claim on

the fact that maternal upbringing and

affection for children were more

important; that children were in the

father's care only for the last seven

months, in which case under the

influence of the father the children

formed a desire to remain in his care.

According to Paragraph 3 of the

Resolution No. 23 of the Plenum of the


Uzbekistan of 1998 September 11, “On

the practice of application of the law by

the courts in resolving disputes related

to the upbringing of children,” the court

ruled that a child who has reached the

age of 10 years may also consider with

which of his/her parents he/she wants to

live.

Under Article 68 of the Family

Code of the Republic of Uzbekistan, a

child has the right to express his or her

opinion in any family matters, as well as

to speak in any court or administrative

proceedings. The jury heard at age of

10, A and B expressed their desire to

live with their father.

In addition, in the conclusion of

the forensic psychological examination

submitted to the jury:

- A, born in 2007, B, born in

2009, C, born in 2011, have a neutral

attitude to their mother, and there is no

psychological connection; their attitude

to their father is positive; based on the

circumstances identified during the

study and the individual psychological

characteristics of the parents, the

relationship with the mother did not

arise under the influence of the father;

- The father's attitude towards his

children is highly reflexive, and the

mother is associated with a lack of

emotional intimacy with her children.

Under expert supervision, the mother is

engaged in resolving a financial issue


77

using the situation that has arisen;

- Minors A, B and C have a

sibling bond with their brother N and

want their brother to live with them;

- It was concluded that changing

the place of residence of children

affects their mental state and leads to

stress in children, which has a negative

impact on their health, personal

development and the formation of

values, social adaptation.

Nevertheless, the courts have

reached an unreasonable conclusion

that the claim should be upheld in a

manner contrary to the best interests of

the children. However, the ruling of the

Judicial Board of the Supreme Court of

October 23, 2019 concluded that the

decision of the court on the annulment

of court decisions was not taken into

account in accordance with the

requirements of applicable law [9].

The above practical example

shows that errors and omissions in the

application of the law by the courts can

also be observed. However, as a result

of such mistakes, the child will

experience negative consequences,

such as stress and depression, until he

is corrected by a higher authority.

Although our proper legislation provides

for the involvement of psychologists and

pedagogues in court proceedings in

cases involving children, the failure of

judges to comply with the requirements

of this norm or the failure of

pedagogues and psychologists to

perform their duties in a professional

manner may result in such negative

consequences.

CONCLUSION

In conclusion, cosidering of all

the above, we believe it would be

appropriate to make the following

changes and additions to our national

legislation:

First, it is necessary to put an

end to the practice of individual judging

of disputes over the rights and interests

of children in the courts, and to

introduce norms on the participation of

pedagogues and psychologists as court

counselors, not as persons involved in

the case;

Second, there should be a corps

of judges specializing in the

consideration of family disputes, with

special privileges for judges with high

practical experience and qualifications;

Third, there should be a further

simplification of the procedure for

applying to the courts by the bodies

protecting the rights and interests of

children and strengthening the relevant

norms in national legislation;

Fourth, it is necessary to


78

strengthen the norms in the legislation

on appealing to the court or taking

measures to reconcile the parties within

5 days in case of any violation of child

rights committed by state bodies and

institutions.


79

REFERENCES

1. Mirziyoуev Sh.M. We will build our great future together with our brave and

noble people. Samarkand – The beauty of the Earth (speech at a meeting with

representatives of the electorate in Samarkand region). Tashkent: NMIU “Uzbekistan”,

2017. P.189

2. This Law was published in the newspaper “Xalq sо’zi” on January 8, 2008 No. 5

(4415).

3. Bulletin of the Oliy Majlis of the Republic of Uzbekistan, 2001, No. 1-2, Article

10; 2002, No. 1, Article 20; 2004, No. 1-2, Article 18; Collection of Legislation of the

Republic of Uzbekistan, 2004, No. 51, Article 514; 2007, No. 29-30, Article 296; 2009,

No. 52, Article 553; 2011, No. 16, Article 162; Bulletin of the Chambers of the Oliy Majlis

of the Republic of Uzbekistan, 2007, No. 6, Article 249; 2012, No. 38, Article 433; 2014,

No. 4, Article 45; 2017, No. 13, Article 194, No. 15, Article 242; National Database of

Legislation, 24.07.2018, 03/18/486/1559, 12.10.2018, 03/18/496/2043; Bulletin of the

Chambers of the Oliy Majlis of the Republic of Uzbekistan, 2019, No. 2, Article 47;

National Database of Legislation, 11.05.2019, 03/19/536/3114, 05.09.2019,

03/19/564/3690, 11.09.2019, 03/19/566 / 3734; 11.03.2020, 03/20/607/0279

4. On the protection of children’s rights: international standards and domestic

constitutions adopted by the Venice commission at its 98th plenary session (Venice,

21‒22 march 2014) on the basis of comments by EUROPEAN COMMISSION FOR

DEMOCRACY THROUGH LAW. Please bring this copy. www.venice.coe.int.

5. Ton Lifaard. Access to Justice for Children: Towards a Specific Research and

Implementation Agenda / The International Journal of Children Rights.

6. Atalykova G.Sh. Proceedings in cases of adoption (adoption) of a child in the

civil proceedings of Uzbekistan and Kazakhstan // Dissertation for the degree of Doctor

of Philosophy in Law (PhD). on the right of manuscript UDC 347.918.1 (043.5 (575.1)

Toshkent, 2020. – P.4

7. Quchqarov. X.A. Improving the legal framework for the simplified procedure in

civil proceedings // 12.00.04 – Civil procedural law. Economic procedural law.

Arbitration and mediation. The dissertation for the degree of Doctor of Philosophy in

Law (PhD) UDC on the right of manuscript: 347.9 (575.1) Tashkent, 2019. – P. 143

8. Ismoilov. Sh.A. Features of the legal regulation of labor of certain categories of

employees // 12.00.05 – Labor law. Social Security Law. Dissertation for the degree of

https://brill.com/search?f_0=author&q_0=Ton+Liefaard


80

Doctor in Law (DSc). UDK 349.222.2 (043.5) (575.1) on the right of manuscript.

Tashkent, 2020. – P. 53.

9. Appendix 2 to the Resolution of the Presidium of the Supreme Court

No. RS-01-20 of January 30, 2020, Case No 6-526-19.


81

DEVELOPMENT OF A NORMATIVE LEGAL ACT AS A SOURCE OF

LAW IN UZBEKISTAN

UDK: 34(042)(575.1)

Mukhammadjonova Mokhibonu Muzaffarovna,




A R T I C L E

I N F O

A B S T R A C T

Keywords:

source of law, form of

law, theory of state

and law, normative

legal act, judicial

precedent, Republic of

Uzbekistan, decisions

of the Supreme Court.

This article analyzes the development of

a regulatory legal act as a source of law in

Uzbekistan. This article will examine various

sources of law that have existed for many

years, such as: normative legal act, judicial

precedent and legal custom, disclosure of the

concepts of “sources of law” and “forms of

law.” The types of forms of sources of law will

be considered in more detail, namely, a

normative legal act as a source of law on the

territory of the Republic of Uzbekistan.

Interaction of various sources of law in the



82

country, their sequence and priority. We will

study in depth the issue of the types of

normative legal acts as the main sources of

law. The development of a regulatory legal act

as a source of law in Uzbekistan will be

studied. Moreover, the article covers the

sources of law and the opinions of scholars

who conducted the analysis in this area. In

addition, the article discusses separately and

in detail on the meaning and development of

normative legal acts in Uzbekistan.

INTRODUCTION

Sources of law are, in a way, the

most important category of legal science.

It is required to begin the study of law

and all its branches. The sources of law

“lay the foundation” for the correct

perception of the entire legal science.

Thanks to the study of the sources of

law, it is possible to understand much

better both the essence of the law itself

and the mechanisms of its functioning, to

understand what such important

institutions as civil society, the state and

law in general are all about.

In this paper, we will try to

systematize information about the

sources of law, reveal their content and

features.

The very concept of “source of

law” was first used by the Roman jurist

Titus Livy, when “he called the Laws of

the XII tables the source of all public and

private law (fons omnis publici privatique

juris).” [1] From that moment on, most

researchers followed the understanding

of the source of law as a certain starting

point for its formation and further

development. D.A. Bulgakova wrote:

“The sources of law are the official and

documentary forms of expression and

consolidation of the norms of law that

come from the state or are recognized by

it, giving them a legal, generally binding

meaning.” [2] That is, she believes that

the source of the right can only be an act

of legislation or a legislative act adopted

by the state.

Another opinion is shared by

V.S. Nersesyants, who insisted that “one

should distinguish between material and


83

formal sources of law.” [3] At the same

time, under the “material source of law,”

he meant the reasons for the formation

of law, for example, a certain spiritual or

material state of the legislator or any

social relations that could affect the

expression of his will. By “formal source

of law” we mean the form by which the

external expression of the content of the

current law takes place. Currently, in

almost every textbook devoted to the

theory of state and law, one can see that

scientists identify such concepts as

“sources of law” and “forms of law.”

However, we believe that these concepts

are far from identical, even if they have

much in common. In our opinion, the

form of law can be both internal and

external. The internal form of law is its

structure and content; the external form

of law is the external expression of a

legal norm in the form of a material

source, that is, a document.

In the literature, there are two

main points of view on the problem of the

relationship between the concepts of

“source of law” and “form of law”: a)

according to the first – the named

concepts are identical; b) according to

the second – the concept of “source of

law” is broader than the concept of “form

of law.” The latter point of view is the

prevailing one today. Indeed, if we

proceed from the generally accepted

meaning of the word “source” as “any

beginning or foundation, root and cause,

starting point,” then in relation to legal

phenomena, we should understand three

factors under the source of law:

1) the source in the material sense

(material conditions of society, forms of

ownership, interests and needs of

people, etc.);

2) the source in the ideological sense

(various legal teachings and doctrines,

legal consciousness, etc.);

3) the source in the formal legal sense is

the form of law [4].

Based on the fact that there are a

large number of approaches to the

understanding of law in the world,

scientists recognize the existence of

several types of forms of law. The

degree of importance of each of these

forms is different. For some, it is very

high, while for others it is noticeably less.

It is customary to distinguish the

following types:

Regulatory and legal act;

Legal custom;

Legal precedent;

The regulatory agreement;

Religious beliefs.

We are interested in the legal act. In this

regard, we will consider it in more detail.


84

Thus, the most common and

highest-status form of law is a normative

legal act. This is an official document that

is issued by a specially authorized state

body or official. The normative legal act

contains generally binding rules of

conduct and is the most common source

of law. Its distinctive feature is that it

clearly fixes the content of legal norms,

and this, in turn, minimizes the arbitrary

interpretation and application of norms,

moreover, it allows the state to pursue a

unified policy.

The importance of this type of

form of law was also emphasized by

D.A. Bulgakova: “Normative legal acts

are official documents originating from a

competent state body, containing a rule

of law and aimed at regulating certain

social relations. Normative acts are

issued by bodies with normative

competence in a strictly prescribed

form.” [5]

Normative legal acts are part of a

single system of legislation, which means

that they have a certain hierarchy. The

system of normative legal acts is

determined separately in each country by

the relevant basic laws. To characterize

a normative legal act according to its

actual effect, the concept of “legal force”

is used, which in this case is understood

as the place of the act in the hierarchy of

normative legal acts, the correspondence

of acts adopted by a lower body to acts

adopted by a higher body [6]. It is the

legal force that determines the position of

a normative legal act in the general

system of state regulatory regulation.

Acts of lower-level law-making bodies

(for example, acts of local state

authorities), which are respectively less

legally binding, are issued on the basis of

and in compliance with normative legal

acts issued by higher-level law-making

bodies (higher representative bodies).

Speaking about our state, first of

all, it should be noted that the legal

system in modern Uzbekistan was and

remains the system of the state of the

European continental family. In other

words, the Romano-Germanic legal

family prevails. Therefore, it is

characterized by the peculiarities of the

sources of law of the States of

continental Europe. In addition, in this

regard, the main source of law is a

normative legal act. The vast majority of

the existing norms in society are fixed in

the normative legal acts.

However, it should also be noted

that with the development of law in the

country, it is recommended to use the

Resolution of the Plenum of the Supreme

Court in deciding a particular case. This

practice is referred to as a judicial


85

precedent. Hence, a judicial precedent is

a court decision on a specific legal case,

which is mandatory for the courts of the

same or lower instance when deciding

similar cases. Judicial precedent is

applied mainly in the countries of the

Anglo-Saxon legal family. Case law is an

integral part of such a system. Moreover,

the possibility of solving cases by

analogy determines its specifics. The

norms developed as a result of

precedent are, in the end, a direct

reflection of universal values that have

been tested by time. Despite the

increasing role of normative legal acts,

the authority of precedent is not lost over

time. The actual force of the precedent

even increases over the years and the

competent courts are not inclined to

review them.

CONCLUSION

Furthermore, an example of the

actual application of judicial precedent

(although legally this source of law

in Uzbekistan cannot be used) in our

state can serve as a decision of

constitutional Court of the Republic

of Uzbekistan on the issues of

interpretation of the Constitution of the

Republic of Uzbekistan or the recognition

that Laws contrary to the Constitution of

the Republic of Uzbekistan.

In addition to normative legal acts

in the Republic of Uzbekistan, legal

custom, judicial practice, and domestic

treaties and agreements of normative

content, as well as international treaties

of the Republic of Uzbekistan and

generally recognized principles and

norms of international law, have a certain

normative value.

However, the main role in the

system of sources of law is played by

normative legal acts.


86

REFERENCES

1. Regylatory Materials

1. “On regulatory acts” No. LRU-389 of 10.08.2015

2. Constitution of the Republic of Uzbekistan.

2. Monographs, Textbooks, Brochures

2.1. Grafskiy V.G. Vseobshchaya istoriya prava i gosudarstva: Uchebnik dlya

vuzav. – 2nd edition, amended. Moscow: Norma, 2007, p. 752. [In Russian].

2.2. Bulgakova D.A. B 90 Teoriya gosudarstva i prava. Textbook. – Almaty:

Yuridicheskaya literatura, 2006, p. 99. [In Russian].

2.3. Matuzov N.I., Malko. TEORIYA GOSUDARSTVA I PRAVA: UCHEBNIK.

Yurist, 2004. [In Russian].

2.4. Boshno S.V. Teoriya prava i gosudarstva [Tekst]: uchebnik dlya vuzov /

Boshno S.V. – 2nd edition, amended. – Moscow: Eksmo, 2011, p. 464. [In Russian].

2.5. Problemy obshchey teorii prava i gosudarstva: Uchebnik / The Institute of

State and Law RAS; under general editorship of V.S. Nersejants. – 2nd edition, revision.

– Moscow: Norma: INFRA-M, 2014, p. 816: 60x90 1/16. (binding). [In Russian].

2.6. Vladik Sumbatovich Nersajants. Obshchaya teoriya prava i gosudarstva.

Textbook for universities. For students of higher educational institutions, trained in the

specialties of “Jurisprudence”, Norma publishing group, INFRA-M, Moscow, 1999. [In

Russian].

2.7. Abduvaliyev, M. (2020) “Invalidity of agreements in civil law – an analysis of

the experience of Uzbekistan and Japan”, TSUL Legal Report International electronic


2.8. CONSTITUTIONAL CONCEPTS OF THE RIGHT TO FREEDOM OF


(EXAMPLE OF REGISTRATION SYSTEM). Abduvaliyev Maksudjon. Review of law


3. Internet Sources

1. https://www.lex.uz

2. https://www.minjust.uz

3. https://www.gazeta.uz


https://www.lex.uz/

https://www.minjust.uz/

https://www.gazeta.uz/


87

12.00.03 – Civil law. Employing law. Family right. International private

law

LEGAL ENTITIES AS A SUBJECT OF PRIVATE INTERNATIONAL LAW

UDK: 341.9(042)(575.1)

Jurayeva Muslima Baxodir qizi,




A R T I C L E

I N F O

A B S T R A C T

Keywords:

subject, legal

entities, private

international law

(PIL), legal

capacity,

incorporation,

personal statute,

nationality.

This article analyzes, firstly, the definition of the

meaning of the concept of “legal entity” in a general

sense, and secondly, the determination of the

concept, types and features as a subject of private

international law. The article studied this topic using

the example of an arbitration case that arose

between banks of the Russian Federation and

foreign banks. The article also shows the difference

between such concepts as “the criterion of

incorporation,” “the criterion of legal entities

location,” “the criterion of legal entity’s principal place

of business.” In conclusion, the author will provide



88

proposals for the future development of this branch

of law.

INTRODUCTION

Nowadays, the concept of “legal

entity” is considered to be actively

discussed. Legal entities act as subjects

of certain relations along with individuals,

which indicates that they can act as full

members of arizing social relations.

As for the legal sphere, they are

subjects of almost all branches of law,

which puts this subject in importance

along with other subjects of law, such as

the state, the individual.

Thus, if we turn to the origin of this

subject, then it can be said that the term

“legal entity” was first introduced into

scientific circulation by the German legal

scholar F.K. Savigny in the 19th century.

In Anglo-Saxon law, there is still no

definition of a legal entity; it uses the

term “corporation.” In Russia, the term

“legal entity” was adopted in the second

half of the 19th century, which is

associated with the development of “The

Code of Laws” of the Russian Empire

under the leadership of M.M. Speransky

[1.2. p. 47].

At this stage, it will be appropriate

to note that in this article legal entities

are considered as subjects in private

international law (hereinafter, PIL), with

which will help us narrow the circle

somewhat for a more detailed analysis of

this topic.

Hence, the article is divided into

two parts:

In the first part, there will be

examined the concept, types, features of

a legal entity as a subject in one of the

branches of law. In the second part,

there will be outlined proposals for the

further development of the topic in the

Republic of Uzbekistan, and this

question will be studied based on real

cases.

Thus, based on Zh.I. Sedova: “One

of the main subjects of private

international law are legal entities.

National legislation and international

treaties determine their legal status.

Any legal entity carrying out activities in

another country is always under dual

jurisdiction: on the one hand, it is subject

to its internal law, which determines its

personal law; on the other hand, it is

subject to the law of the country on the

territory of which it conducts economic or

other activities.” [1.3. p. 14] At the same

time, D.A. Shevchuk states: “Legal

entities are one of the main subjects of

PIL. Their legal status is determined both

by the domestic law of individual states

and by the constituent documents of the


89

legal entity created on its basis and, in

some cases, by international normative

treaties.” [1.4. p. 38]

Based on these opinions, today the

concept of “legal entity” (hereinafter

referred to as “LE” as a subject of PIL)

does not have a unified understanding in

the legal doctrine. In our opinion, we

understand LE as a subject of PIL, firstly,

an organization that has separate

property, is responsible for its

obligations, acquires civil rights and

bears duties, and acts on its own behalf

in court and arbitration. Secondly, it is

under the jurisdiction of two countries:

the sender state and the recipient state.

In PIL, the following two concepts

are the most essential for legal entities:

1) Personal statute (law).

It determines the internal organiza-tion of

the legal entity; form, scope of its

activities and legal capacity; obligatory

contribution of founders and other

participants; initial capital and its form;

rights and obligations of founders and

members; composition and competence

of governing bodies of legal entities, etc.;

2) Nationality. It differs from the

concept of citizenship of individuals – an

institution of state law, which is based on

the principles of “blood rights” and “soil

rights.” In PIL, the nationality of a legal

entity should be understood as its

belonging to a particular state [1.4.

pp. 38-39].

As for the types of legal entities in

PIL, Professor V.T. Batychko believes

that “there is a difference between

general and special legal capacity of

legal entities. Having general legal

capacity, a legal entity has the right to

acquire civil rights and bear civil

obligations, as does a natural person,

with the exception of such rights and

obligations, the necessary precondition

for which is the natural properties of a

person. With special legal capacity, an

LE has the right to enter into such legal

relations, which are necessary only to

achieve the goal specified in the law or

charter.” [1.1. p.100] Based on this, it can

be concluded thet LEs have two types of

legal capacity: general legal capacity – to

have civil rights and responsibilities, as

individuals, except for those that are

inherent only in people, such as the right

to life. Special legal capacity ‒ to enter

into legal relationships that will lead to

the goal prescribed in the law or in the

statutes of the legal entity, for example,

to cooperate with other LEs for the future

development of the organization.

At this phase, it will be appropriate

to note the features of an LE in the PIL.

In our view, in this case, the peculiarity

of this subject of PIL is nationality.


90

The nationality of a legal entity means its

belonging to a certain state. However, in

PIL, most countries recognized that legal

entities are accountable and subject to

the norms of national legislation, that is,

they can carry out their activities on the

territory of one country, but will be

accountable to the law of the state to

which it belongs. It is also pertinent to

note that three main criteria are

mentioned in determining citizenship:

1. The criterion for incorporation. It

is used in the countries of the Anglo-

Saxon system of law, Russia, the

countries of Eastern Europe, etc. In this

case, the personal statute is determined

by the law of the state where the legal

entity is created and its constituent

documents are registered (incorporated).

In this case, factors related to the place

of business and the management of a

legal entity is not taken into account.

2. The criterion for the location of

legal entities. It is mainly adhered to by

the countries of the continental system of

law (Germany, France, Austria,

Switzerland, etc., as well as Poland),

This criterion for the most part means

that the determination of the nationality

of a legal entity is directly dependent on

its location, specified in the charter and

freely determined by the founders.

Establishing a personal law on the basis

of this criterion is rather convenient,

since the place of official residence of a

corporation is easy to verify and,

therefore, there are no difficulties in

obtaining information about its legal

capacity.

3. Criterion of legal entity’s

business principal place. In this case, the

place where the legal entity performs its

main activity is decisive for establishing

nationality. In PIL, the place of main

activity is understood as the country

where the administration is permanently

located; the business of the enterprise,

administrative documents, accounting

books are officially conducted;

negotiations are constantly held with

partners, etc. [1.4. p. 39]

In our opinion, these criteria are

from the reasons for the conflict that lead

to litigation since these criteria were

considered too formalized and did not

reflect the actual ownership of the

capital. After all, situations are possible

when a company is formed according to

the laws of one country, is located in

another, and carries out its main

activities in third countries. It will be quite

difficult to determine the nationality of

such an enterprise using these criteria.

As for disputes arising between the

subjects of PIL, including legal entities,

the case between banks of the Russian


91

Federation and foreign banks may be a

suitable example.

After the financial catastrophe of

1998, the state, which, in fact, was to

blame for it, took a number of emergency

measures to save the dying banking

system. In particular, a 90-day

moratorium on foreign debt obligations

was introduced. This did not help many

banks, and they had to go through

restructuring or even bankruptcy

procedures, which again involve a

temporary suspension of debt payments.

Although somewhat unexpectedly, the

Supreme Court of Arbitration of the

Russian Federation came to the

conclusion that forward contracts were a

type of bet, and therefore, in accordance

with the Civil Code, they were not subject

to judicial protection (Resolution of the

Presidium of the Supreme Court of

Arbitration of June 8, 1999 No. 5347/98).

Nevertheless, it was in forward foreign

exchange contracts that the lion’s share

of the debt of Russian banks to foreign

partners of 8 billion out of about

$ 25 billion of total debt was

concentrated. Therefore, it turned out to

be difficult for foreign creditors to recover

their money through Russian courts, to

put it mildly, just as it was for domestic

creditors [2.1].

In this case, it is possible to say

that both banks of the Russian

Federation and foreign banks, on the one

hand, and the Russian Federation, on

the other hand, act as plaintiffs.

Apparently, the norms of national

legislation were used in this case and the

case was closed in favor of the Russian

Federation.

It is worth noting that the peculiarity

of such a branch of law as private

international law is that, while

maintaining the differences in the legal

systems of states, it is private

international law, with the help of the so-

called conflict of laws rules to determine

which state’s law should be applied in

the relevant cases. Based on this,

proposals have been made for the

further development of this industry.

Today, the main trend in the

development of private international law

is the codification of conflict-of-law and

substantive norms of private international

law, which is carried out either by

creating special laws on private

international law, or by codifying

international legal norms. In our view, in

order to improve the PIL in our state, first

of all, it is necessary to introduce training

for teachers and professors of the


(hereinafter, TSUL) from experienced


92

foreign scientists in this field, which will

help them teach students this module

with deeper knowledge and experience.

Second, in the age of information

technology, it is important to adapt and

apply the norms of PIL to regulate these

virtual relations.

CONCLUSION

In conclusion, it should be noted

that the importance of the PIL is

increasing every day, which indicates the

growing role of this branch of law among

other branches of law. In addition, the

emergence of the World Wide Web and

its virtual relations has posed several

entirely new problems to private

international law, related to the definition

of applicable law, the protection of

intellectual property rights, the regulation

of international electronic commerce, and

the determination of jurisdiction in arising

disputes.

.


93

REFERENCES

1. Monographs, textbooks, brochures

1.1. Batychko V.T. International private law. Lecture notes. Taganrog: TTI SFU,

2011.

1.2. Scientific article of Professor M.N. Radzhabov “Problems of an international

legal entity”.

1.3. Sedova Zh.I. International legal entity as a subject of private international law:

Candidate of Legal Sciences. ‒ Moscow, 2001. ‒ 170 p.

1.4. D.A. Shevchuk. Private international law. Publisher: Eksmo; 2009, 272 p.

1.5. Abduvaliev, M. (2020) “Invalidity of agreements in civil law ‒ an analysis of the







2. Electronic educational resources

2.1. http://jurdefinans.com/stati/article_post/spory-s-uchastiyem-inostrannykh-

kompaniy.



94

APPLICATION OF ALTERNATIVE METHODS OF INVESTMENT

DISPUTE RESOLUTION IN THE REPUBLIC OF UZBEKISTAN

UDK: 330.322(042)(575.1)

Yakubova Madinabonu Abdumalikovna,

Doctoral Student (PhD)



A R T I C L E

I N F O

A B S T R A C T

Keywords:

alternative dispute

resolution (ADR),

mediation, dispute

settlement.

Given the perceived benefits of alternative

dispute resolution (ADR) processes, such as

negotiation and mediation and their importance, it

would seem that it is an appropriate option for an

investment dispute to opt for. This paper will

emphasize the fact that opting for ADR provides

fast, cheap, effective, and flexible dispute

resolution. However, it does not mean to ignore the

fact that there is a possibility of risks associated

with the use of these alternatives.

One of the main areas in which legal reforms

need to be introduced in Uzbekistan is to achieve

greater success in using alternative methods to


95

quickly and efficiently resolve disputes that have

arisen. In order to improve the system of protecting

the rights and legitimate interests of individuals and

legal entities, and expanding alternative options for

resolving disputes, as well as dramatically

increasing the role of the mediation institution,

arbitration courts and international arbitration in

optimizing the volume of work in courts, it is

necessary to take drastic measures to apply

alternative legal methods for resolving investment

disputes.

In this article, the author examines the term

and general classification of alternative methods of

settling investment disputes; its formation and

development in Uzbekistan; and also gives the

expected results that can be achieved with more

active use of alternative methods of settling

disputes in the Republic of Uzbekistan.

INTRODUCTION

Participants in the investor-state

contracts, when a conflict situation

arises, should seek to consolidate their

relationship with each other to ensure the

continuity of their project. To achieve this

end, parties always fortify their

agreement with a number of clauses

dealing with dispute matters

(Clark, 2004). Furthermore, they will

generally strive to put into place

processes, which are prompt, efficient,

private, and are designed to cause

minimum disturbance to working

processes and maintaining relationship

between the contracting parties

(Ross, 2007). Hence, parties in these

industries are disposed in favour of

agreed dispute resolution processes,

whether personal to their contract (such

as negotiation and meditation or as laid

down by international instrument (such

as arbitration), rather than placing

reliance upon the procedures of the


96

national courts (Saleh Al-Barashdi,

2016).

One of the priority directions for the

implementation of legal reforms in

Uzbekistan is the introduction of a

system of alternative methods for

resolving investment disputes, which will

ensure transparency, efficiency, and

effectiveness in resolving cases between

the parties to an investment agreement.

The term “Alternative Dispute

Resolution” or “ADR” refers to a wide

range of dispute resolution mechanisms

that are alternatives to litigation. The

term can be used to refer to a variety of

dispute resolution mechanisms, ranging

from facilitated settlement negotiations,

in which the parties to a dispute are

encouraged to negotiate directly before

resorting to other legal dispute resolution

mechanisms, to arbitration, which can be

very similar to a trial.

The main advantages of ADR are:

‐ saving time and money;

‐ return to the parties of control

over the conflict situation;

‐ avoidance of litigation

that could adversely affect the

partnership relations between

the parties;

‐ flexibility.

The Alternative Dispute Resolution

System (ADRS) is a set of tools and

mechanisms that form the procedures for

resolving and out-of-court settlement of

disputes arising between the subjects of

legal relations. Moreover, the ultimate

goal of using ADRS is to resolve the

conflict at the lowest cost for all its

participants.

In its most general form, alternative

dispute resolution can be divided into:

Negotiation, as one of the most

typical forms of alternative dispute

resolution, aims to create an

environment in which the parties to a

dispute encourage direct negotiations

without the involvement of a third

party. This is a process whereby the

parties voluntarily develop a mutually

beneficial agreement to resolve a

general dispute. Unlike ADR with the

involvement of a third party, negotiations

allow the disputing parties to

independently control the process and

the decision.

Conciliation and mediation are

very close to each other in that they

involve a third party to mediate a

particular dispute or to reconcile a

relationship. Mediators or conciliators

can facilitate com-munication or can help

structure the settlement, but they are not

empowered to issue a verdict. At the

same time, in mediation, meetings with

the parties are held separately in order to


97

make efforts to establish mutual

understanding and identify the reasons

for the dispute, and thus to create the

basis for a solution in a friendly,

consistent manner. Conciliation, on the

other hand, is a voluntary and informal

process in which the disputing parties

choose a neutral third party (one or more

persons) who will assist them in reaching

a mutually acceptable solution. Unlike

judges or arbitrators, a mediator does not

have the authority to issue a binding

decision to the parties. In return, the

mediator contributes to the formation of a

solution that will satisfy the interests of all

parties. The role and process of

conciliation can be very specific and

depend on the nature of the dispute and

the approach of the conciliator.

The conciliator can use a wide range

of techniques, for example, to facilitate

effective communication between

the parties and the development

of cooperation between them;

determination of the real interests of the

parties; defining and narrowing the

number of questions; transmission of

messages between the parties; suggest

possible solutions and represent the

consequences of not finding solutions.

Arbitration provides for a third

party to reach a verdict on a dispute

between the parties. It is important to

distinguish between compulsory and

optional forms of ADR. Negotiation,

conciliation and mediation are optional

forms of ADR and depend on the

willingness of the parties to reach an

amicable settlement. The arbitration

proceedings can be either compulsory or

optional. Compulsory arbitration ends

with a third party rendering an award,

which is binding on the parties even if

they disagree with the award. The non-

binding arbitration proceedings also

result in a third party rendering an award,

which, however, the parties may reject.

In Uzbekistan, the ADR system

began to develop relatively later. One of

the first stages of the ADR enforcement

was the adoption of the Law of the

Republic of Uzbekistan “On arbitration

courts,” which entered into force on

January 1, 2007 [1]. In accordance with

the law, the applicable law of arbitration

can only be the legislation of Uzbekistan;

state authorities and management

cannot be parties to the arbitration, only

a citizen of Uzbekistan can be an

arbitrator. The law was adopted with the

assumption that arbitration courts will

primarily consider internal disputes and

does not take into account the specifics

of arbitration, in which the parties may

belong to states with different legal,

economic, and social systems.


98

These rules effectively limit the

ability of foreign investors to use the

arbitration system as international

commercial arbitration [2].

In addition, a legal framework has

been created in Uzbekistan, consisting of

a number of interrelated laws and

bylaws, where the central place is taken

by the laws: “On Foreign Investments,”

“On Guarantees and Measures for

the Protection of Rights of Foreign

Investors,” “On Investment Activities,”

regulations “On the procedure for

concluding and implementing investment

agreements” and other bylaws (more

than 50).

Foreign investors and enterprises

created by them in Uzbekistan can turn

to institutional mechanisms to resolve

investment disputes and protect their

rights and interests. Intergovernmental

agre-ements on mutual protection and

promotion of investments ensure the

relative stability of the legal framework

for foreign investment and provide an

additional tool for investors to protect

their rights and interests.

However, there remain problems of

investment activities in the Republic

of Uzbekistan in ensuring their rights,

which include inefficiency of traditional

institutions and system of relationships

and the absence of an alternative dispute

resolution system that can provide

additional mechanisms for the protection

of rights [3].

A legal analysis of the current

legislation and law enforcement practice

shows the absence of a wide practice of

resolving disputes by alternative

methods on the territory of Uzbekistan:

arbitration, stabilization clauses in

investment contracts or mediation.

In foreign countries, foreigners

justifiably avoid resolving disputes in

state courts, which tend to make

decisions in favor of the local side.

In such a situation, the Uzbek side,

not having sufficient information about all

the mechanisms for resolving a dispute

and the consequences of choosing one

or another mechanism, often agrees with

the terms of dispute resolution proposed

by the foreign partner. These terms, as a

rule, are not favorable for Uzbek parties.

Moreover, when concluding an

agreement, they try to include a clause

on dispute resolution in the Supreme

Economic Court of Uzbekistan, not

foreseeing that in the future, even if a

decision is made in favor of the Uzbek

side, this decision, due to the absence of

relevant international agreements, will

not be recognized and enforced on the

territory of any foreign state [4].

https://translate.googleusercontent.com/translate_f#_ftn2




99

CONCLUSION

In this regard, according to the

analysis and proposals of international

organizations, more active use in

Uzbekistan of alternative forms of

dispute resolution with the participation

of foreign investors, such as international

arbitration, conciliation, mediation, will

allow solving the following tasks and

problems:

• provide the parties to the dispute

with greater freedom to choose a forum

to resolve a future or arisen dispute;

• will provide a more efficient

dispute resolution for the parties (in

terms of time and material costs, the

quality of consideration, preservation of

reputation and business relations);

• will create in the future an

institutional basis for the development of

international arbitration in the country

for the consideration of international

disputes (including as a neutral forum)

and the development of the system of

arbitration law, including the doctrine;

• solve possible problems of the

Uzbek side with the subsequent

implementation of the decision abroad;

• will increase the number of

disputes resolved at the pre-trial stage;

• will unburden the state judicial

system with all the ensuing

consequences and compensate for the

difficulties in creating additional links of

economic courts.


100

REFERENCES

1. On October 16, 2006, the Law of the Republic of Uzbekistan “On Arbitration

Courts,” which entered into force on January 1, 2007.

2. Analytical report “Improvement of the system of resolution of investment

disputes in Uzbekistan” UNDP. 2008.

3. According to research UNDP 2008 the year and analysis and the authors on

the basis of statistics of economic justice in Uzbekistan.

4. Box. The Force of Foreign Arbitral Awards and Judgments in Uzbekistan Since

February 1996, the Convention on the Recognition and Enforcement of Foreign

Arbitral Awards of June 10, 1958 (New York Convention) entered into force for

Uzbekistan, establishing the rule of compulsory recognition and enforcement on its

territory (using the mechanism of enforcement of decisions of national courts)

decisions of international arbitration courts without reconsideration of the dispute on

the merits. The recognition of arbitral awards within the framework of the said

Convention is carried out by submitting a relevant petition to the economic courts of

Uzbekistan. “Each Contracting State recognizes arbitral awards as binding and

enforces them in accordance with the procedural rules of the territory where

recognition and enforcement of these awards is sought” (Article 3 of the Convention on

the Recognition and Enforcement of Foreign Arbitral Awards) Enforcement in

Uzbekistan decisions of foreign state courts are carried out in accordance with

agreements on legal assistance concluded with the CIS countries and some other

countries.

5. Analytical report “Improving the system for resolving investment disputes in

Uzbekistan,” UNDP, 2008.


101

12.00.04 – Civil procedural law. Economic procedural law. Arbitration

process and mediation

THE IMPLEMENTATION OF MODERN INFORMATION AND

COMMUNICATION TECHNOLOGIES IN THE ACTIVITIES OF

COURTS IN THE ACTION STRATEGY DEVELOPMENT OF OUR

COUNTRY: RESULTS AND PROSPECTS

UDK: 37(042)(575.1)

ORCID: 0000-0001-7717-5747

Khudoynazarov Dadakhon Avaz o‘g‘li,

base doctoral studies



A R T I C L E

I N F O

A B S T R A C T

Keywords:

courts, judges,

electronic,

information and

communication,

“E-SUD”,

The article discusses the work done on the

introduction of modern information and

communication technologies in courts; electronic

document management in courts during a pandemic;

the activities of electronic sites; statistics on the

electronicization of the judicial system; problems in


102

videoconference,

pandemic,

statistic.

practise, legislation, domestic and foreign

experience; improvement of legislation.

INTRODUCTION

In today's fast-paced world,

modern information and communication

technologies, which are developing year

by year, are entering all spheres. No

industry is excluded. Note that similar

changes are occurring in the judiciary. It

is no exaggeration to say that these

changes in the judiciary have made the

judiciary one of the most developed

countries in the world. The main purpose

of this is to ensure the rights, freedoms,

and legitimate interests of citizens in a

full, quality, and timely manner.

Therefore, the introduction of modern

information and communication

infrastructure in the entire judicial

system; the development of information

resources and information systems, their

widespread and effective use; the further

introduction of electronic document

management in the courts; ensuring

openness, transparency, and efficiency

of courts; improving the quality of

litigation and access to justice; the speed

and convenience of court proceedings;

the provision of interactive services to

individuals and legal entities through the

websites of the judiciary ‒ are of great

importance for today and the future.

As a logical continuation of the

important steps in the reform of the

judicial system recently, the President of

the Republic of Uzbekistan adopted

resolutions on 30 August 2017 “On

measures for the further introduction of


technologies in the activities of courts”

No. PP-3250 and “On measures to

digitalize the activities of the judiciary”

No. PP-4818 of 3 September 2020. The

adoption of these resolutions has led to

many positive changes in the activities of

the courts on issues related to the

use of information and communication

technologies.


103

What are the positive aspects of

the introduction of modern information

and communication technologies in the

judiciary? What are the options for

making it a convenient and popular

system for individuals and legal entities?

It is natural that during the pandemic,

questions arise about whether the

use of information and communication

technologies has been replaced.

The use of modern information and

communication technologies in courts in

the context of a complex pandemic has

led to the possibility of online dispute

resolution. The wider introduction of


technologies in the work of courts is

crucial for individuals and legal entities,

the courts themselves, government and

other organisations, as well as the work

of the courts in today and foreign

experience:

1) to ensure openness, transparency,

and efficiency of the judiciary, to

increase the quality of judicial

proceedings, and public awareness

of justice, to eliminate red tape,

bureaucracy and abuse by court

staff [1];

2) to avoid spending more time to

make a final decision on the case

before the court;

3) to resolve disputes more quickly by

the courts and to prevent an

increase in the number of cases

pending before the courts;

4) to expand the range of interactive

services provided by courts to

individuals and legal entities;

5) for online monitoring of each

application process;

6) free access to interactive services in

courtrooms;

7) for the possibility for the parties to

obtain court decisions online;

8) to record in court using audio

recording during the trial;

9) for the automatic distribution of

cases among judges in the courts of

first instance;

10) to inform all participants of the court

on a free basis about the time and

place of court hearings via SMS;

11) to submit court decisions to the

parties online, and at their request in

paper form;

12) for electronic submission and receipt

of court cases to the state archives;


104

13) for the electronic exchange of

information with ministries and

agencies in court proceedings;

14) for the submission of claims,

applications and complaints to the

courts only in electronic form by

public authorities and administration,

local public authorities, economic

administration, lawyers;

15) for online monitoring of claims,

applications and complaints by

stakeholders;

16) to ensure information security and

secure circulation of electronic

documents in the judicial system.

It is also planned to develop a

mobile application that will allow

videoconferencing in court hearings by

the end of this year. We can consider the

following statistics on the introduction of


technologies in the courts.

As a result of computerization of

the courts alone, in 2018, 75,506 cases

in criminal courts, 363,034 cases in civil

courts, 979,300 cases in administrative

courts and 444,236 cases in economic

courts, a total of 1,862,076 cases

were automatically distributed among

judges [2]. In addition, a total of

1,442,820 enforcement documents from

67,742 criminal courts, 524,657 civil

courts, 341,893 administrative courts and

508,528 economic courts were sent

electronically through the information

system, while 27,543 economic cases

were generated electronically. In 2020,

an electronic archive of 12,850 works

was formed.

The digitalization of the judiciary is

also assessed by its rule of law index in

international rankings.

In particular, according to the Index

of the Rule of Law of Uzbekistan ‒

92nd place, including the indicator of

“Civil Justice” ‒ 72nd, the indicator of

“Criminal Justice” ‒ 66th place. Indicates

that it is necessary [3].

In the Federative Republic of Brazil,

a special computer program is used to

make and execute decisions on traffic

accidents.

The program stores and distributes

instructions and physical evidence at

work. The court decision is automatically

drawn up on the basis of the information

provided. Therefore, the DARE system

has been developed, whose task is to

detect and evaluate false testimony in

court.

Today, as a result of the electronic

activities of the courts, the following

electronic sites are operating.

E-SUD – national electronic judicial

information system;


105

my.sud.uz – interactive services

portal [4];

exsud.sud.uz – sending appeals in

electronic form, online monitoring of their

consideration and receipt of court

decisions in electronic form;

billing.sud.uz – electronic payment

system. The only electronic payment

system for accounting of state duties and

court fees;

public.sud.uz – “Collection of

decisions” systematic publication of court

decisions that have entered into force;

template.sud.uz – “Samples”

placement of lawsuits and ap-plication

forms for appeals to the courts;

calculate.sud.uz – “Calculator”

electronic calculator that automatically

calculates the state duty;

jadval.sud.uz – “Schedule of

meetings” online to get acquainted with

the list of cases assigned to the court

session;

qabul.sud.uz – “Electronic

reception” online registration for a

personal reception of the leadership of

the Supreme Court remotely;

my.sud.uz/#/monitorning –

“Online tracking” online tracking of

appeals;

vka.sud.uz – remote participation

in court hearings “Videoconferencing.”

Digitalization of our courts is also

based on foreign experience.

Therefore, according to the UK

experience today, in economic and civil

courts, the amount of claims not

exceeding ten thousand pounds, less

significant cases are resolved through

the online court platform [5]. (The Code

of Economic Procedure of the Republic

of Uzbekistan also provides for a

simplified procedure, but does not

provide for the resolution of cases

through an online court platform). The

main advantage of the online court

platform is that the parties will be able to

participate in court hearings from

anywhere and resolve the dispute in the

shortest possible time.

There are also law firms in foreign

countries (UK, USA) that resolve

disputes independently, and disputes are

resolved very quickly and conveniently.

https://www.ebay.com

– engages in online trading and

resolves trade-related disputes.

It is initially indicated that it will

be resolved by mutual

agreement. If the dispute is not

resolved, the company

employee will resolve the

dispute fully online within ten

days.

http://www.ebay.com/


106

https://www.modria.com –

resolves civil and economic

disputes quickly and cheaply

wherever they wish. Since then,

the need for courts in dispute

resolution has been declining, with

courts being used as a final step in

dispute resolution.

Today, in practice, there are cases

when the bank seals the receipt of

payment through the electronic system of

courts.

There are cases when judges and

their assistants register their claims in

the “online system” a month after the

court hearing. Moreover, the fact that

judges set the date and time of the

hearing to 00:04 in the evening due to

insufficient skills in the field of

information technology does not meet

the requirements for today's judicial staff.

Based on the above, we should

make the following suggestions and

recommendations to improve the

electronic activities of the courts:

1. The introduction of a single

“electronic court” system,

which collects all the sites

and electronic information on

the activities of the courts.

2. A drastic reduction in paper

costs through creating an

electronic bank of cases in

the courts.

3. Improvement of the existing

procedural order in the court

proceedings, as well as the

procedure for monitoring

cases of deadline violations

without the human factor.

4. Launching an online court

platform based on e-court

system and implementing it

in three stages:

a) online assessment ‒ helps to

determine the type, basis and subject of

the dispute and to explain the rights and

obligations of the applicants;

b) online consultant ‒ the dispute

will be resolved without the participation

of a judge. It also acts as a mediator at

the same time;

c) an online judge will resolve the

dispute by mutual agreement of the

http://www.modria.com/


107

parties, if he cannot resolve, the judge

will be involved.

5. Development of a DARE

system, the task of which is

to detect and evaluate false

testimony in court.

CONCLUSION

In conclusion, the new changes in

the judiciary strengthen its role in

protecting the rights and legitimate

interests of citizens. The digitalization of

the judiciary creates a basis for

increasing the confidence of citizens in

the courts, satisfying them, and easy

solution of their problems. Such reforms

also include remote access to the courts;

adjudication without a visit to courthouse;

the use of video conferencing; automatic

distribution of cases among judges; the

publication of court decisions on the

Internet, and the electronic submission of

enforcement documents through using

information technology. Note that the use

of information and communication

technologies in the courts during the

pandemic has become critical. Because

no state's judiciary was ready for that.

Emphasis was placed on the importance

of more rapid computerisation of the

judiciary in the wake of the pandemic.


108

REFERENCES

1. Resolution of the President of the Republic of Uzbekistan dated August 30,

2017 No. PP-3250 “On measures for the further introduction of modern information

and communication technologies in the activities of courts.”

2. B. Ochilov. The head of the Department for the Introduction of Information and

Communication Technologies and Information Security of the Supreme Court.

http://hudud24.uz/sudlar-faoliyatida-ahborot-tehnologiyalari-ochi%D2%9Blik-va-

shaffoflikka-hizmat-%D2%9Bildi/

3. X. Kamolov. In criminal cases, the chairman of the Boston district court

https://xs.uz/uzkr/post/discussed-the-numbering-of-the-activity-of_the_courts

4. Resolution of the President of the Republic of Uzbekistan dated September 3,

2020 No. PP-4818 “On measures to digitalize the activities of the judiciary.”

5. I. Saidov, Assistant Judge of Bukhara Inter-District Economic Court and Master

of Brunel University London.


109

12.00.05 – Labour law. Law of social maintenance

THE RIGHTS OF JUDICIAL PROTECTION IN THE SYSTEM OF LABOR

RIGHTS OF EMPLOYEES

UDK: 349.2(042)(575.1)

ORCID: 0000-0002-9497-5057

Baybekova Zulfiya Faridovna,

Master’s Degree Candidate of the Business Law Direction



ORCID: 0000-0002-2628-6153

Zokirov Sardorjon,

Senior Specialist of the Department of Strategic Development

and Entering into International Rankings

of Tashkent State University of Law

e - mail: [email protected]

A R T I C L E

I N F O

A B S T R A C T

Keywords:

reforms, labor

dispute resolution

In the field of labor law, there are features of

protecting the rights and legitimate interests of

employees. Accordingly, the features that are




110

bodies, court,

protection of labor

rights, in the

narrow and broad

sense, distinctive

features,

international

standards,

methods of

protecting labor

rights, advantages

of the court, illegal

actions of the

employer.

characteristic of labor law have an impact on the

legal means of protecting rights. An employee can

defend his rights on his own by contacting the

competent authorities that supervise the monitoring

of compliance with labor legislation, using

conciliatory and intermediary means (mediation,

etc.). In the system of the legal protection of

employee rights, the leading and decisive place is

taken by judicial protection. In turn, the level of

judicial protection of citizens' rights is considered as

the main indicator of the place of the judiciary in

society, an indicator of the democracy of the society

itself. At the same time, the draft of the new edition

of the Labor Code (LC) of the Republic of

Uzbekistan has expanded the list of ways to protect

the labor rights of employees, thereby providing

more opportunities to defend the violated rights of

employees in case of illegal actions by employers. In

addition to the bodies exercising supervision of labor

laws compliance, and bodies considering labor

disputes, the following were also included: self-

defense, bodies of public control, conciliation, and

mediation procedures. However, priority is given by

the judicial authority as a body that also protects

violated labor rights.

Introduction

Today, one of the priority

principles of all state bodies, which

was put forward by the President

of the Republic of Uzbekistan

Sh.M. Mirziyoyev: “Not the people who

serve the state bodies, but the state

bodies must serve the people.” [1] For


111

the first time, this principle was

highlighted in the work of the President

of the Republic of Uzbekistan

Sh.M. Mirziyoyev “We will build a free,

democratic and prosperous state of

Uzbekistan together.”

The main goal of the ongoing

judicial and legal reforms in Uzbekistan

is aimed at building effective protection

of constitutional rights and freedoms of

man and citizen, including the right to

judicial protection. In this regard, the

National Action Strategy on Five Priority

Development Areas 2017-2021 outlines

specific measures to strengthen the

true independence of the judiciary, and

guarantees reliable protection of civil

rights and freedoms: increase of the level

of citizens' access to justice, as well as

improvement of the system of combating

crime and offence, implementation of the

adversarial principle in litigation, and

improvement of the system of rendering

legal assistance and legal services.

In the legal protection system, the

leading and determining place is

occupied by judicial protection. In turn,

the level of judicial protection of civil

rights are considered as the main

indicator of the place of the judiciary in

society, an indicator of the democracy of

society itself.

It should be noted that in the field

of labor law, there are features of


interests of employees. Accordingly, the

features that are characteristic of labor

law have an impact on the legal ways of

protecting rights. An employee can

defend his or her rights independently by

contacting the competent authorities that

monitor compliance with labor legislation,

using conciliatory and intermediary

means (mediation, etc.).

The right to judicial protection of

labor rights and freedoms arises for the

subject of labor relations at the moment

when his rights or legitimate interests are

violated, and is exercised regardless of

any circumstances since it is an integral

part of constitutional law [2. p. 50].

However, many scientists in their

works express different points of view

about what should include the protection

of employee labor rights.

For example, in a general sense,

the concept of “employee labor rights

protection” includes any activity that is

carried out by various entities in the

interests of employees and aimed at

improving their working conditions,

fulfilling the guarantees established by

law.

In this case, “any activity” refers to

the establishment on legislative level the


112

conditions and guarantees basic labor

rights of employees; developing

cooperation between employers and

workers to conclude agreements and

collective agreements; workers’

participation in administration; broad

promotion of labor legislation, and

training him the basics and ways to

protect the rights of employers and

employees.

In its turn, I.A. Kostyan strictly

defines the protection of labor rights, as

“the actual exercise by an employee and

authorized bodies, in accordance with

the procedure established by law, of their

rights to apply legal measures to an

employer who does not fulfill their duties

and commits actions that hinder the

normal exercise of employees' rights.” [4]

Based on the above conclusions,

the protection of labor rights is

understood as:

1. The means and methods

stipulated in the law that protect

the labor rights and interests of

employees;

2. A set of measures to prevent and

eliminate the causes that

generate violations of the law;

3. Compulsory restoration of the

violated right and compensation

for the damage caused in this

case;

4. Responsibility of officials for

violation of labor rights and non-

fulfillment of legal obligations.

In addition, the employee's rights

have distinctive features:

1. Labor rights allow an employee to

act as one of the parties to labor

and other relevant relations;

2. The employee rights reflect the

specific category features of

employees (athletes, minors, and

others) [5].

Before discussing main

classifications of workers’ rights, it should

be emphasized that, as noted above, the

Constitution of the Republic of

Uzbekistan is based on international

standards. For example, the International

Covenant on Economic, Social and

Cultural Rights recognizes the right to

work as the right of everyone to receive

the opportunity to earn a living by work

which he freely chooses or to which he

freely agrees to ensure this right. As a

party to this Covenant, the Republic of

Uzbekistan not only ensures this right in

Article 37 of the Constitution but also

provides for the right to defense in case

of violation.

Based on international labor

rights, one of the authors,

V.S. Sharikova, made the following

classification of employee rights:


113

“With the adoption of Geneva

Declaration on Fundamental Principles

and Rights at Work and its Follow-up by

the International Labour Conference

in 1998, the main directions in this area

were reflected, the implementation of

which can be carried out by each state

regardless of its level of economic

wellbeing and political will. According to

this international act, it is proposed to

divide the rights of employees into the

corresponding four groups.

The first group consists of

employees’ right to freedom of

association and collective bargaining,

which are enshrined in the relevant

conventions of the International labor

organization. The peculiarity of both

international legal acts is that they not

only establish the right of all employees

and employers to form organizations and

join them of their choice without

obtaining prior permission, and define

guarantees of freedom of activity of

these organizations from interference by

state authorities, but also provide for

measures to encourage collective

bargaining.

The second group of employees’

rights includes the right of workers to be

protected from all forms of forced or

compulsory labor.

The third group of employees’

rights includes the right to prohibit child

labor, including its worst forms.

The fourth group of employees’

rights is the right to protection from

discrimination in the field of work and

occupation [6 p.5].

An interesting position on this

issue was taken by N.G. Aleksandrov,

who divides all the basic rights of

employees into two groups:

- the rights exercised within the

framework of employment relationship

(employee’s right to provide work

stipulated by the employment contract, to

amend and terminate the employment

contract, payment of wages, and to rest);

- the rights exercised within the

boundaries directly related to labor

relations (the employee's right to

vocational training, retraining, and

advanced training; association, including

the right to form trade unions and join

them; participation in the management of

the organization; conducting collective

bargaining and concluding collective

agreements and contracts through their

representatives, as well as providing

information regarding the implementation

of the collective contracts, agreements,

and protection, including judicial

protection) [6].


114

It can be classified as an

employee’s labor rights based on the

source. The basic rights of employees

can be differentiated on the rights

established in the Constitution of the

Republic of Uzbekistan; the rights of

workers provided for by international

instruments; employee rights regulated

by the LC of the Republic of Uzbekistan;

workers' rights derived from other

regulatory legal acts containing norms of

labor law; workers’ rights covered in

presidential decrees, the resolutions of

the Cabinet of Ministers and normative

legal acts of state authorities; employees’

rights reflected in the acts of local

public authorities, collective contracts,

agreements, local normative act.

As for the rights of workers in

labor legislation, in the Republic of

Uzbekistan the concept of “employee

labor rights protection”, as a method of

protection, is defined in the Labor Code,

Article 8, which states: “Everyone is

guaranteed the protection of labor rights,

which is carried out by bodies of

supervision and control over compliance

with labor legislation, as well as labor

dispute resolution bodies.” [7]

The basic labor rights of an

employee are listed in Article 16 of the

Labor Code of the Republic of

Uzbekistan. According to this article, the

employee is guaranteed the right to

protection, including judicial, labor rights,

and qualified legal assistance, as well as

the right to defend his interests in

collective and labor disputes.

In the new edition of the Labor

Code of the Republic of Uzbekistan, this

right has the following wording:

“protection of their labor rights, freedoms,

and legal interests by all means not

prohibited by law,” [8] including by going

to court.

To ensure the protection of the

employee's rights, the labor legislation of

the Republic of Uzbekistan provides for

appropriate methods. In the current

Code, there is no special article devoted

to the entire ways of protecting labor

rights. At the same time, however,

Article 9 of the Labor Code of the

Republic of Uzbekistan indicates that

such protection is carried out by the

bodies of control and supervision of

compliance with labor legislation and

labor protection rules.

1. Bodies of control and

supervision are:

• specially authorized state

bodies and their inspections;

• trade unions.

2. Organs of the prosecutor’s


115

office. Supervision of the precise

and uniform implementation of

labor legislations on the territory of

the Republic of Uzbekistan is

performed by the Prosecutor

General of the Republic of

Uzbekistan and his subordinate

prosecutors;

3. Bodies for handling labor

disputes.

In the draft of the new edition of

the Labor Code, a special article is

devoted to the protection of labor rights.

Among them:

1) self-protection of labor

rights by employees;

2) state control (supervision)

over compliance with labor

legislation and other normative

legal acts containing labor law

norms;

3) public control over

compliance with labor legislation

and labor protection rules;

4) labor right protection by

conciliation and mediation

bodies;

5) labor rights protection of

the labor dispute bodies.

CONCLUSION

Based on the contents of the two

tables, it can be concluded that the draft

of the new version of the Labor Code of

the Republic of Uzbekistan included

three ad-ditional methods of protection

that are widely used in foreign countries.

These protection methods were included

not only to develop the institution of labor

right protection but also to facilitate the

work of the judicial authorities, which are

one of the main bodies for the protection

of employee rights.

However, one of the most

effective and widespread ways to protect

labor rights is judicial protection, which,

as practice shows, is available to

everyone. The arguments are as follows:

1) the court is an independent body,

including independence from the

state and its governmental

agency;

2) free access for the employee;

3) a certain list of court decisions on

labor disputes is subject to

immediate execution;

4) judicial protection has a guarantee

of high efficiency in the form of

compulsory execution of a judicial

act that has the force of law, as

well as the existence of legal

mechanisms for its enforcement.

In other words, by expanding the

list of ways to protect labor rights, the


116

wording of the law on labor rights

protection in the new draft of the Labor

Code was changed, thereby providing

more opportunities to defend the violated

rights of employees in case of

employer’s illegal actions.


117

REFERENCES

1. Mirziyoyev Sh.M., We will all together build a free, democratic and prosperous

state of Uzbekistan., “UZBEKISTAN” NMIU., 18 978-9943-28-941-3, 2016, 145 p.

2. Amaglobeli N.D., Labor law. Textbook // Amaglobeli N.D., Hasanov K.K.,

Rassolov I.M. – Moscow: “UNITY-DANA”. 2014. – 563p; URL: www.cyberleninka.ru

3. Gusov K.N, Tolkunova V.N, The labor law of Russia: a textbook – Moscow:

2006. – 642 p.

4. Kostyan I.A., On the implementation of the right to judicial protection // Judicial

protection in the sphere of labor and social security: a collection of articles. Reports of

the section of labor law and social security law of the joint XV Intern. scientific-practical

conf. juried. Faculty of Moscow State University named after M.V. Lomonosov and VII

Intern. Scientific – practical conf. “Judicial Reform in Russia: Past, Present, Future

(Kutafin Readings)” (Moscow, November 26, 2014). – Moscow: 2015., 74 p.

5. Prokopenok E.M., Doctrinal approaches to the definition of the essence and

criteria for the classification of labor rights and interests / Prokopenok E.M. // Bulletin of

Polotsk State University. Series: Economic and legal sciences – Moscow: 2011. –

No. 13, 65 p.

6. Sharikova V.S., Basic classifications of workers' rights, 2017. – St. Petersburg:

p. 25.

7. Labor Code of the Republic of Uzbekistan dated December 21, 1995 // Bulletin

of the Oliy Majlis of the Republic of Uzbekistan, 1996; National database of legislation,

04.12.2019г., №03/19/586/4106// https://lex.uz/docs/145261/

8. The draft of the new edition of the Labor Code of the Republic of Uzbekistan ID-

7609 is published on: https://regulation.gov.uz.

http://www.cyberleninka.ru/

https://lex.uz/docs/145261/

https://regulation.gov.uz/


118

CONCEPT AND PURPOSES OF HUMAN RESOURCE MANAGEMENT

IN THE ASPECT OF LABOR LAW

UDK: 349.2(045)(575.1)

ORCID: 0000-0003-1568-9771

Soyipov Khumoyun Khusniddin ugli,

Master of Law, Labor Law Direction



A R T I C L E

I N F O

A B S T R A C T

Keywords:

human resource

management

(HRM),

management,

efficiency, labor

law, personnel,

employee, Labor

Code,

development,

social relations.

This scientific article analyzes issues

regarding the concept and purpose of human

resource management in the aspect of labor law.

In particular, it reveals the systematic nature of

the human resource management process and

believes that in order to increase the efficiency of

an enterprise, it is necessary, first of all, to pay

attention to the human resources of the

enterprise, which are the driver of any

development. In addition, the author believes that

the goals of human resource management in the

aspect of labor law are enshrined not only in the


119

theory and in doctrine of labor law; these goals

can be traced in the current legislation of the

Republic of Uzbekistan, which are gradually

disclosed in this work. Moreover, this article

emphasizes that in the process of human

resource management of an enterprise, a deep

study of the economic situation and cultural,

traditional values of its employees is one of the

main factors in achieving success and forming

loyalty of employees of the enterprise to the

values and goals of the enterprise as a whole,

and particularly the employer.

Introduction

Taking a reasonable, fair look at the

reality around us, one can see that all life

events, social relations and natural

phenomena are part of one, integrated

whole. At the same time, each of these

components has its own laws, rules of

conduct and regulators.

In the same way, social relations

have their own vectors of development,

however, the improvement of one has its

influence on another social relation, and

i.e. there is a correlation between them.

The manifestation of consistency

and apartness could also be traced in

labor relations.

To illustrate, speaking about branch

of law that regulates the labor relations of

workers, we can refer to the Labor Code

of the Republic of Uzbekistan, where in

the last part of Article 1 it is said that “the

labor relations of individuals working

under an employment contract (or

employment agreement) at enterprises,

institutions, organizations of all forms of

ownership, as well as individual citizens.”

Therefore, we can conclude that all labor

relations of employees with employers

are regulated precisely by the labor law

of the Republic of Uzbekistan. However,

we would like to draw your attention to

the fact that, according to Article 18 of

the same Code, “the features of

regulation of the labor of civil servants

are established by law” that is, with tools

of administrative law.

In the same way, the process of

labor activity itself has its own internal


120

nature. By dividing it into its constituent

parts, one can deeply study the essence

of the labor process, analyze what

factors affect the development of

workers’ labor efficiency and what

organizational managers should pay

more attention to in order to maximize

the labor productivity of their

subordinates.

Regarding this, one of the pioneers

of labor law of the Republic of

Uzbekistan, M.Yu. Gasanov believes that

“the global economic, political and social

changes that have taken place over a

quarter of a century in all spheres

of state and public life of our

country require a profound theoretical

understanding, new approaches that

take into account not only the realities of

today, but also the prospects for further

development. The above fully applies to

labor law, affecting the interests of

millions of citizens of Uzbekistan, both

workers and their families, and

employers.” [1, p. 3].

From this point of view, we decided

to study and reveal the concept and

goals of human resource management in

the aspect of labor law, which

P.V. Zhuravlev and others understand it

as “a system of organizational, socio-

economic, psychological, moral and legal

relations that ensure the effective

implementation of human capabilities

both in the interests of the employee and

the organization as a whole” [2].

Speaking about the consistency of

the process of human resource

management A.A. Tatarinov states:

“human resource management becomes

what it is only as a result of the

interaction of psychology, economics,

law, methods of stimulating and

organizing the behavior of workers’ labor.

Reflecting the nature of the whole, each

of the listed elements is aimed at

increasing production efficiency, which

allows the elements to actively influence

each other.” [3, p. 14].

We would like to especially note

that in labor relations, human resource

management traditionally understands

the processes of hiring, drawing up

template labor contracts and workbooks,

providing annual leaves, i.e. for most

employers, the scope of this concept is

limited only to papers.

Under the organization of personnel

labor, i.e. HR management should

understand the process of working with

the personnel themselves in order to

achieve maximum efficiency by the

employee, i.e. disclosure of all their

skills, abilities and human capital.

In the context of increasing

competition in the world for highly


121

qualified personnel, where employers are

well aware that the positive employee

performance has positive results for the

company, in particular, “in most countries

with a dominant market economy, the

business sector in its daily activities has

long been focusing on the use of various

methods of optimizing the organizational,

technical and social components of

production,” [4] giant companies conduct

large-scale research to improve the

efficiency of their personnel. The results

of these studies are very significant

discoveries that reveal previously

unknown capabilities of a person and its

human resource.

Based on the results of these

studies, in practice, certain sets of rules

and norms of behavior are developed,

specific activities that are aimed at the

most successful planning and

management of the labor activity of

employees, in other words, the personnel

policy of the organization.

It is also worth noting that in theory,

among scientists and researchers there

are many points of view on the definition

of the concept of “human resource

management,” as well as the name of

this process (some call this process

“work with personnel,” others –

“personnel management,” someone

“development of human resources,” the

rest – “staff motivation,” etc.).

This was noted by M.V. Laktionov,

who emphasizes that modern human

resource management “is characterized

by the absence of a single paradigm or

system of initial principles, postulates,

research methods, criteria for evaluating

results that would be shared by most

researchers.” [5].

However, many of them

unanimously emphasize that human

resource management is a set of rules,

methods and techniques aimed at

increasing the efficiency and productivity

of an employee in his daily performance.

Thus, N.V. Kostenko believes “work

with personnel is the process of

organizing human resource management

in order to obtain a positive result in

relation to any issue, and in the

personnel sphere too.” [6, p.17].

Regarding this issue, L.I. Evenko

argues that “management is a function, a

type of activity to guide people in a wide

variety of organizations; it is the ability to

achieve goals using labor, intelligence,

motives of other people's behavior.” [7].

One of the fathers of human

resource management systems,

F.W. Taylor highlighted that “the correct

organization of labor in a plant with

outdated equipment will provide better


122

results than the work of a modern

enterprise with poor organization.” [8].

Dergachova emphasizes, “The field

of view of researchers in the sphere of

labor and its productivity falls, first of all,

the employee himself as the main force

of the organization. The person as a

factor that increases the competitiveness

of the organization, as the main

resource, the competent management of

which will help maintain the

organization's strategy and increase

productivity, allowing it to reach a new

level and set a new bar. A human

resource is an “energy source” for an

orga-nization.” [9, p.10].

Tatarinov said, “The organization of

joint work requires purposeful activity of

the top echelon and the heads of

individual departments. This activity

includes the development of a strategy

for personnel policy, concepts, principles,

methods of personnel management and

is often referred to as human resource

management.” [3, p.15].

Analyzing the goals of personnel

management in the aspect of labor law, it

is also worth noting that the initial goal of

employers is to develop their own

business. However, as we noted above,

in modern conditions of competition, the

human resources of organizations come

to the fore. Therefore, employers are

forced to develop the efficiency of their

organization through long-term planning

and additional investments in unlocking

the potential of their employees, which

requires not only costs, but also a long

time. We believe that it takes at least 5

years to train one highly qualified

personnel, and even then, if the process

of improving their qualifications is

established in the right way [10].

In addition, one of the main points

of the human resource management

process in labor relations is the

determination from the very first contact

between the applicant-future employee

and the employer of their own goals. This

event is supposed to be necessary for

the successful integration and

consolidation of the goals of both parties

and the further development of working

relations in closer relations, since

according to the just statement of

M.Yu. Gasanov ‒ “the specificity of labor

relations is manifested in the fact that

both the commonality and the

contradictory interests of their parties are

clearly traced in them.” [1, p. 8].

The goals of human resource

management in the aspect of labor law

are enshrined not only in the theory,

doctrine of labor law; these goals can be

traced in the current legislation of the

Republic of Uzbekistan [11].


123

Thus, in Article 2 of the Labor Code

of the Republic of Uzbekistan, the

legislator states that “the legislation on

work, considering interests of workers,

employers, the states, provides effective

functionning of the labor market, fair and

safe working conditions, protection of

labor rights and health of workers;

promotes increase in labor productivity,

improvement of performance quality, rise

on this basis of material and cultural level

of living of all population.”

In these matters, the legislation of

the Republic of Uzbekistan is even more

liberal and, in addition to the above

minimum requirements, Article 174 of the

Labor Code establishes that “the work

schedule at the enterprise is determined

by the internal work schedule approved

by the employer in agreement with the

trade union committee or other

representative body of workers,” that is,

the right to determine the work schedule

is given to the enterprises themselves,

which must be adopted in agreement

with the trade union committee or other

representative body of workers, which, of

course, must have a positive impact on

the process of human resource

management at the local level [12].

We believe that in the process of

human resource management of an

enterprise, a deep study of the economic

situation and cultural, traditional values

of its employees is also one of the main

factors in achieving success and forming

loyalty of employees of the enterprise to

the values and goals of the enterprise in

general and in particular to the employer.

Our thoughts are confirmed by the

following opinion of A.A. Tatarinov:

“Success in a free market economy is

possible only with the development of

methods of labor motivation that are

adequate to the cultural traditions of the

people and legal means to ensure

them.” [3, p. 22].

CONCLUSION

Thus, summarizing the above

arguments, the opinions of scientists and

the norms of the legislation of the

Republic of Uzbekistan, we would like to

note that the process of human resource

management in the aspect of labor law

sets itself the goal of the most efficient

organization of labor activity of the

employees of the enterprise, which is

equally useful for both employees and

organizations. In this regard, employers

develop special rules of conduct and

qualification requirements that must be

observed by employees of the enterprise

for their own benefit.

It is worth noting that human

resource management, setting strict

requirements for the entire team of the


124

enterprise, sets itself the task of

organizing their work “not from above,”

but by forming staff loyalty and creating

the most favorable working conditions for

them.

Moreover, the managers of

enterprises and other administrative

workers do their best to stimulate that

ordinary workers take leading positions

in the enterprise as soon as possible and

contribute as much as possible to the

development of the common cause and

are generously rewarded for this.


125

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1. Гасанов М.Ю.Трудовое право Республики Узбекистан. Общая часть. –

Т.: Издательство «LESSON PRESS», 2016 г. 320 c (Gasanov M.Yu. Labor Law of

Republic of Uzbekistan. Common part. – Tashkent. «LESSON PRESS» 2016. 320 p.)

2. Журавлев П.В., Каштанов С.А., Маусов Н.К., Одегов Ю.Г., Персонал.

Словарь понятий и определений – М.: «Экзамен», 2000. С.468 (Zhuravlev P.V.,

Kashtanov S.A., Mousov N.K., Odegov Yu.G., Personnel. Dictionary of concepts and

definitions. Moscow: "Exam", 2000. p. 468).

3. Татаринов А.А. Управление персоналом: соотношение трудового права и

кадрового менеджмента [Электронный ресурс: дисс.канд.юрид.наук: 12.00.05 – М.:

РГБ, 2005] 214 c. (A.A. Tatarinov Personnel management: the ratio of labor law and

personnel management [Electronic resource: dissertation of the candidate of legal

sciences: 12.00.05 ‒ Moscow: RSL, 2005] 214 p.)

4. Армстронг М. Практика управления человеческими ресурсами. (See: M.

Armstrong Practice of Human Resource Management.

5. Лактионов М.В. Системный подход в менеджменте – М.: «Генезис» 2000

год стр. 33 (Laktionov M.V. System approach in management. Moscow: "Genesis"

2000 p. 33)).

6. Костенко Н.В. Совершенствование системы управления трудовыми

ресурсами как фактор повышения эффективности деятельности предприятий.

Дипломная работа. Туапсе, 2016 год. 60 с. (Kostenko N.V. Improving the human

resources management system as a factor in increasing the efficiency of enterprises.

Thesis. Tuapse, 2016. 60 p.).

7. Евенко Л.И. Менеджмент на пороге XXI века / Вступительная статья к кн.

М. Мескон, М. Альберт, Ф. Хедоури «Основы менеджмента – М.: 1998 год. 5 стр.

(Evenko L. I. Management on the threshold of the XXI century / Introductory article to

the book M. Meskon, M. Albert, F. Khedouri. Fundamentals of management. Moscow:

1998. 5 p.).

8. Тейлор Ф.У. Принципы научного менеджмента / Пер. с англ. А.И. Зак. ‒ М.:

Контроллинг, 1991. ‒ 104 c. (Taylor F. U. Principles of scientific management /

Translated from English by A. I. Zak. ‒ M.: Controlling, 1991. ‒ 104 p.).

9. Дергачёва В.Д. Формирование HR-бренда организации как способ

повышения лояльности персонала. Магистерская диссертация. Направление


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39.04.01 «Социология». Санкт-Петербург 2016 год. с. 82 (Dergacheva V.D.

Formation of an organization's HR brand as a way to increase staff loyalty. Master's

thesis. Direction 39.04.01 "Sociology". St. Petersburg, 2016. p. 82).

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культуры речи у студентов юридических факультетов //Review of law sciences. –

2020. – Т. 3. – №. Спецвыпуск. (Niyazova N. Discussion and debate as a means of

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зарубежная практика. Review of law sciences, 4 (Спецвыпуск), 88-91. doi:

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10.24412/2181-919X-2020-88-91).


127

EXPERIENCE IN THE ELIMINATION OF CHILD LABOR IN

UZBEKISTAN: PROBLEMS AND ACHIEVEMENTS

UDK: 347.63(042)(575.1)

Urinboyeva Mukhlisa Marufovna,




A R T I C L E

I N F O

A B S T R A C T

Keywords:

juvenile labor,

Republic of

Uzbekistan,

International

Labor

Organization,

United Nations,

convention,

report, law.

This article is devoted to one of the most global

problems of our time – juvenile labor. The article

presents the results of surveys, reports, and

monitoring that were carried out regarding the labor

of children. In addition, the types of child labor in the

Republic of Uzbekistan are disclosed in detail with

appropriate examples. Moreover, it mentions the

actions of the government and the ILO to prevent

certain problematic aspects of our chosen topic.

INTRODUCTION

Childhood is the happiest and most

carefree period in the life of every

person, when the responsibilities consist

of studying and behaving well. However,

many children live in completely different

conditions and are forced to work at an

early age. Child labor disfigures any


128

civilized society. Many states in the last

century passed laws that restrict the

work of minors. Unfortunately, child

exploitation is not unusual in many

developing countries these days due to

extreme poverty. It is established that

according to UN statistics dedicated to

World Day against Child Labor [1], today,

218 million children aged 5 to 17 are

forced to work worldwide. Of these,

152 million are victims of modern

slavery, and 73 million are engaged in

hazardous work. Despite the fact that

predominantly teenagers at the age of

15‒17 are employed in hazardous work,

about 19 million children in this area are

under the age of 12. Out of 152 million

child slaves, 88 million are boys, and

64 million are girls.

Child labor is widespread issue

throughout the world, and despite all the

efforts of international human rights

organizations, this type of labor remains

a very urgent problem today. Particularly,

in our country, every day we can witness

children involved in the child labor

against their will. In most cases, children

from hopelessness go to work and

cannot fully enjoy the most carefree and

joyful times of their lives.

We all know that, until recently, our

state has been at the center of the world

community's discussions on child labor.

The most striking example of this is the

exploitation of minor children in

agricultural work, more specifically in the

annual cotton harvest. This tradition,

inherited from the Soviet era, has

established an absolute priority for the

timely collection of “white gold” over the

education of our country’s children. The

reason for attracting children to

compulsory labor at that time, mainly,

was its low rating. “There are a lot of

children in the family – let them collect

and help their parents” – so they thought

at the time. However, the fact that this

work is classified as heavy and may lead

to a number of dangerous health

consequences, many parents did not

even suspect. On the other hand, the

state put pressure on the low-income

population, threatening families that if the

children do not work, the financial

assistance that is provided to them will

be wiped out. Farmers, by contacting the

head of the educational institutions,

could take school children to the cotton

fields.

The fight against child labor, which

is the object of criticism of the entire

world community, partially began in our

country at around 2008 year. It became

systemic in 2013, when a boycott of

Uzbek cotton was announced worldwide

due to the use of child labor. A number of


129

Western wholesale and retail companies,

including Asda, Gap, Marks & Spencer,

Wal-Mart Stores and Tesco, flatly

boycotted the purchase of Uzbek cotton.

Based on the extreme situation,

Uzbekistan ratified two International

Labor Organization Conventions on child

labor in 2008. In the same year, the ILO

(International Labor Organization) was

allowed into the territory of Uzbekistan to

conduct the necessary monitoring.

Moreover, only by 2013, on the

instructions of the Prime Minister, this

was put to an end. Since 2013, it has

been prohibited to involve individuals

under the age of 18 in cotton harvesting.

In the same year, the ILO concluded that

there is no systematic use of child labor

in Uzbekistan, but there is a risk of its

occurrence. For several years,

cooperation between the ILO and the

Republic of Uzbekistan has shown

positive results, and on May 29, 2017,

the country's Minister of Foreign Affairs

Abdulaziz Komilov in his speech at an

expanded session of the Senate of the

Oliy Majlis, said that the term “child

labor” was removed from the agenda

between Uzbekistan and the ILO, the

United States and the EEC countries. In

addition, in September of the same year,

President Shavkat Mirziyoyev, speaking

at the 72nd session of the UN General

Assembly, noted that effective measures

were taken jointly with the ILO to

eliminate forced child labor. After this

speech, the government took control

over the issue. Supervision of

attendance at educational institutions

was esta-blished. However, there were

cases when high school students went

out to pick cotton to earn money.

When a survey was conducted

among students of educational

institutions, it was revealed that children

from poor rural families go to the

collection for the correction of their

financial situation. Often, the money

earned from the cotton harvest is the

only source for the purchase of, for

example, winter clothing and other

needs. At the same time, the educational

process, of course, suffers.

On April 1, 2019, the annual report

announced by the ILO noted that there is

no systematic child labor and forced

labor in the cotton industry of

Uzbekistan. Despite the fact that this is a

good indicator, today the labor of

children in Uzbekistan cannot be

considered completely eradicated.

The U.S. Department of Labor has

released the 19th edition of its annual

findings on the worst form of child labor,

the TDA Report [2]. The Trade and

Development Act, TDA is the United


130

States Trade and Development Act,

passed in 2000. The law requires

countries to meet obligations to eliminate

the worst forms of child labor in order to

be eligible for certain U.S. trade

preference programs. According to it,

since 2002, the Bureau of International

Labor Affairs (ILAB) of the Ministry of

Labor has published opinions. They note

the efforts of 131 states and territories to

combat child labor. Based on this

indicator, countries are assigned ratings

of “substantial,” “moderate,” “minimal”

progress, or “no improvement.”

A new TDA report [3] says that

Uzbekistan made moderate progress in

eliminating the worst forms of child labor

exploitation in 2019. The Government

actively took measures to prevent the

use of child labor during the cotton

harvest, including criminalizing repeated

violations of the rules that prohibit a

hazardous working condition, doubling

the number of labor inspectors, and

conducting a large-scale campaign to

raise public awareness of the laws

prohibiting child labor and responsibility

for their violation. In addition, the

government established a National

Commission on Combating Trafficking in

Persons and Forced Labor and adopted

a new action plan to combat trafficking in

people and forced labor.

Nevertheless, it should be noted

that the report emphasizes that the

country has not conducted a national

study on child labor to determine the

extent of its use in sectors that are not

related to the cotton production.

The following are some of the

sectors and activities where underage

labor is used that remain neglected,

according to the TDA report: agriculture

(silkworm breeding, soil preparation for

crops); services (street work, including

street trading, car washing, and

especially begging; scrap metal

collection; public works, including school

repairs and decoration, and cleaning of

surrounding areas); trade in markets.

Furthermore, the following are

considered as the worst forms of child

labor under Article 3(a) of ILO

Convention 182 [4]: commercial sexual

exploitation, sometimes as a result of

human trafficking; forced labor in

silkworm farming; forced labor in

construction, and agriculture (other than

cotton production), and cleaning of

parks, streets, and buildings.

Here the question arises: why do

we continue encountering children who

are engaged in begging on the streets

every day, despite the weather

conditions and the danger of the

territories, for what reason are children


131

still involved in public works, which are

illegal? Which of the competent

authorities deals with these important

issues and, as a result, who protects the

rights and freedoms of children in the

above-mentioned situations. Besides,

there are many such examples to be

cited.

According to the national and

international legislation, the involvement

of children in labor is strictly prohibited.

Uzbekistan has ratified ILO Conventions:

Convention No. 29 on Forced Labour,

Convention No. 105 on the Abolition of

Forced Labor, Convention No. 138 on

Minimum Age, and Convention No. 182

on the Worst Forms of Child Labour. The

norms set out in these documents state

that it is prohibited to use the work of

people under the age of 18 in jobs that

may harm their health and it is prohibited

to engage in administrative labor. In our

legislation, namely, in the Code of the

Republic of Uzbekistan on administrative

responsibility, Article 51 states,

“Administrative coercion to work in any

form, except in cases provided for by

law, entails the imposition of a fine of one

to three minimum wages. The same

offense committed against minor-entails

the imposition of a fine of five to ten

minimum wages.” [5].

In addition, on January 22, 2020,

President of Uzbekistan Sh. Mirziyoyev

signed the Law “On Amendments and

Additions to Certain Legislative Acts of

the Republic of Uzbekistan,” which

introduces criminal liability for the use of

child labor. In particular, for the use of a

minor in work that may harm his health,

safety or morals, a fine of up to 25 basic

calculation values, imprisonment for up

to 3 years or deprivation of a certain

position for the same period is

provided [6].

This is a highly sensitive topic, and

no matter how rude it may sound, it is a

“sore point” of our nation. Every

responsible and vigilant citizen should

contribute to the prevention of such

offenses, because our future depends on

children, on these innocent members of

society. Meanwhile, the government

should ensure the implementation of all

the adopted norms of legislation and

allow the international community to

monitor, help identify problems based on

many years of experience and jointly

conduct fruitful work on the identified

shortcomings.

After all, child labor is work that

deprives children of their childhood,

human dignity, and the opportunity to

develop their potential. This is the kind of

work that hinders their comprehensive


132

development, inhibits the process of

human formation as a person. It is very

important to provide children with a

decent childhood, to create all the

necessary conditions for them to acquire

fundamental knowledge, to help them get

a decent job in the future that will benefit

society and help people maintain a

dignified existence. The involvement of

chil-dren in work that negatively affects

their health, humiliates them, contributes

to the destruction of their self-esteem,

and adversely affects their psyche, can

cause a young child to turn into

physically and intellectually limited

adults.

CONCLUSION

In the current competitive world, the

prosperity of any state depends

fundamentally on the quality of its human

resources. In addition, tolerance of the worst

forms of child labor does not allow for

significant investment in human capital,

which is the task of any society thinking

about its future. Even if some temporary

economic benefits could be obtained from

the use of child labor, they cannot be

compared to the long-term loss to all

humanity, as a result of the benefits gained.


133

REFERENCES

1. Regulatory materials

1.1. The Code of Administrative Responsibility of the Republic of Uzbekistan:

official publication-Ministry of Justice of the Republic of Uzbekistan. – Tashkent:

“Adolat”, 2018 – 536 p.

1.2. The Criminal Code of the Republic of Uzbekistan: official publication – Ministry

of Justice of the Republic of Uzbekistan. – Vol.: “Adolat”, 2018 – 536 p.

1.3. Convention on the Prohibition and Immediate Action for the Elimination of the

Worst Forms of Child Labor [Convention 182].

1.4. The U.S. Trade and Development Act of 2000 (The Trade and Development

Act, TDA).

1.5. Abduvaliev, M. (2020) “Invalidity of agreements in civil law – an analysis of the







2. Internet sources

2.1. https://lex.uz/

2.2. https://www.norma.uz/

2.3. https://www.un.org/ru/documents/decl_conv/conventions/convention182.shtml

2.4. https://www.dol.gov/agencies/ilab/about/laws



134

12.00.08 – Criminal law. Offence prevention. Criminology.

Criminal-executive

law

CRIMINAL LIABILITY OF MINORS IN SOME DEVELOPED COUNTRIES

AND IMPLEMENTATION OF ADVANCED EXPERIENCE IN THIS FIELD

TO NATIONAL LEGISLATION

UDK: 343.915(042)(575.1)

ORCID: 0000-0002-4183-4760

Bokiyev Jakhongir,




A R T I C L E

I N F O

A B S T R A C T

Keywords:

minors, juvenile

offenders, age of

criminal liability,

criminal

punishment,

juvenile justice.

Special attention is being paid to minors not only

in our country, but also in all countries of the world.

Judicial and legal reforms in Uzbekistan have

identified the protection of the rights and legitimate

interests of minors, especially the further liberalization

of criminal liability, as one of the main tasks. This

article reveals the features of criminal liability for


135

juvenile delinquency in International standards such as

“Beijing rules,” as well as in some foreign countries,

their juvenile justice system and some theoretical and

practical issues in Uzbekistan related to minors, with

the adaptation of positive experience of these

countries to our national legislation. For instance, the

author analyzes what juvenile justice is, when and

where it was established, what kind of international

standards exist in this field, and why we know its

positive and negative aspects. Secondly, this article

identifies contemporary approaches to minors’ crime

and punishment in various developed European

countries, particularly Russia, Germany, France, and

Japan from Asia. All information was taken from these

countries’ official legislations. Moreover, in this article

several viewpoints of some of lawyers and specialists

in the juvenile justice system were given. At the

conclusion of this article, some new norms to Criminal

code of Uzbekistan can be proposed.

INTRODUCTION

For more than 10 years, the

protection of the rights and interests of

minors has been one of the main issues

not only in our country, but allaround the

world. Over the past period, along with

the creation of a legal framework to

protect the rights of minors, special

systems have been established. One

such system is juvenile justice.

A number of researchers have

given different explanations on juvenile

justice. In particular, M.A. Khamidova

defines: “Juvenile justice is an

international term, which means a fair

trial for juveniles or a juvenile court.” [2].

V. Artykova's definition is

relatively general, meaning that juvenile

justice is a system that responds to

juvenile delinquency [3]. In our view,


136

juvenile justice means dealing with

children who are in conflict with the law.

To put it more simply, it is a separate

system of trial in cases involving juvenile

delinquency who has committed an

offense for which criminal punishment is

envisaged and has reached the age of

criminal responsibility.

The past decades of the

nineteenth century witnessed an

intensification of the debate over the fight

against juvenile delinquency. For the first

time in July 1899 in Illinois, USA, juvenile

delinquency was considered by a

juvenile court under the Parental and

Unaccompanied Juvenile Delinquency

Act, not by a general court [4]. It was the

first step in establishing separate courts

to hear juvenile cases. Since then, many

U.S. states have had juvenile justice

legislation. By 1925, juvenile courts had

been established in all but two states.

The practice of establishing

separate courts for juveniles later

became widespread in many countries

(in Great Britain in 1908, in 1921 in

France and Belgium, in 1918 in Spain, in

1921 in the Netherlands, in 1922 in

Germany and in 1923 in Austria). In

these countries, courts always hear

juvenile cases in different circumstances

(e.g., in closed sessions) and impose

lenient sentences on children than on

adults.

An analysis of criminal law in

some foreign countries has revealed that

committing a crime by an elderly person

is one of the mitigating circumstances.

Furthermore, in 1985 November

29, United Nations Standard Minimum

Rules for the Administration of Juvenile

Justice (The Beijing Rules) was

adopted by General Assembly

Resolution. According to these rules,

member States shall endeavor to

develop conditions that will ensure for

the juvenile a meaningful life in the

community, which, during that period in

life when she or he is most susceptible to

deviant behaviour, will foster a process

of personal development and education

that is as free from crime and

delinquency as possible [7].

This act points out that juvenile

justice is to be conceived as an integral

part of the national development process

of each country, within a comprehensive

framework of social justice for all

juveniles, which at the same time

contributs to the protection of youth and

maintenance of a peaceful order in

society. Efforts shall be made to

establish, in each national jurisdiction, a

set of laws, rules and provisions

specifically applicable to juvenile


137

offenders, as well as the institutions and

bodies entrusted with the functions of the

administration of juvenile justice and

designed:

1) to meet the varying needs of

juvenile offenders, while protecting their

basic rigths;

2) to meet the need of society.

Therefore, the issue of developing

a draft concept for the introduction of the

juvenile justice system to improve

national legislation in our country on the

basis of advanced foreign experience is

set out in the sixteenth paragraph of

Decree of President of the Republic of

Uzbekistan on 22 April 2019 can be

considered as an example of the special

attention given by the government [1].

For this reason, the Article

analyzes the scope of criminal liability of

juveniles in the criminal law of some

foreign countries, their juvenile justice

system and the adaptation of positive

experience in these countries to our

national legislation.

It is known that each country

establishes the age of majority of an

individual, which is determined based on

the development and other conditions of

the population of each country. Similarly,

countries’ criminal laws set the age for

criminal prosecution, as well as for the

prosecution or social protection of

juvenile offenders.

Notably, Section 5, Chapter 14 of

the Criminal Code of the Russian

Federation sets out the norms of criminal

liability of minors, according to which

Article 87 recognizes minors as persons

who have reached the age of fourteen,

but not the age of seventeen, at the time

of committing a crime [8]. According to

Article 88 of this Code, there are the

following types of penalties imposed on

minors:

a) a fine;

b) deprivation of the right to

engage in certain activities;

c) compulsory work;

d) correctional work;

e) deprivation of liberty;

f) imprisonment for a certain

period.

A fine is charged on a juvenile

convict regardless of whether they have

an independent earnings or property.

The fine imposed on a juvenile convict

may be levied by a court decision from

his parents or other legal representatives

with their consent. The fine is set at one

thousand to fifty thousand rubles or other

income of the juvenile for a period of two

weeks to six months.

Compulsory work, which consists

of the performance of work that can be


138

done for minors, is assigned to them for

a period of forty to one hundred and sixty

hours, and it is performed in their spare

time or in their free time from their main

job. The duration of this type of

punishment by persons under the age of

fifteen should not exceed two hours per

day, and by persons between the ages of

fifteen and sixteen should not exceed

three hours per day.

Correctional work is imposed on a

juvenile convict for a period of up to one

year.

The penalty of deprivation of

liberty is charged on a juvenile convict as

a principal punishment for a period of two

months to two years.

According to Article 88 of the

Criminal Code of the Russian

Federation, a sentence in the form of

imprisonment is enforced on juvenile

offenders who have committed a crime

under the age of sixteen, for a period not

exceeding six years. If a juvenile

commits a serious crime, he or she may

be sentenced to imprisonment for a term

not exceeding ten years and kept in

educational colonies. It should be noted

that a sentence in the form of

imprisonment may not be imposed on a

juvenile who has committed a minor or

moderate crime for the first time before

the age of sixteen, as well as on a

juvenile who has committed a minor

crime for the first time.

Such punishments are imposed by

specialized courts for the protection of

the rights of minors, which were

introduced in Russia in the 1990s. These

courts, which are a juvenile justice

system, hear cases involving juveniles in

criminal, civil, and administrative matters.

There are also specialized courts for

juvenile justice in the Russian

Federation, such as in the United

States, Germany, Romania, Poland,

Estonia, and Lithuania.

In one of the developed countries

on the Asian continent, in Japan,

juvenile delinquency is governed by the

Juvenile Act [10] and the Penal Code [9].

According to Article 41 of the Penal

Code, persons under the age of 14 may

not be prosecuted. The Japanese Penal

Code does not define specific types of

punishment for minors, as in the Criminal

Code of the Republic of Uzbekistan.

However, the general types of

penalties are specified in Article 9 of the

Code. According to it, the principal

punishments are categorized as the

death penalty, imprisonment with work,

imprisonment without work, a fine,

misdemeanor imprisonment without

work, and a petty fine, with confiscation

as additional penalties.


139

However, according to the

Juvenile Act, there are some exceptions

to the law for minors. In particular,

minors under the age of 10 were

exempted from criminal liability.

Juveniles between the ages of 11 and 13

are not criminally liable, but may be sent

to “educational colonies.” In accordance

with Article 51 of this Act, in case a

person who is under 18 of age at the

time of commission of an offense is to be

punished with capital punishment, life

imprisonment shall be imposed. In case

a person who is under 18 of age at the

time of commission of an offense is to be

punished with life imprisonment,

imprisonment with or without work for a

definite term may be imposed. In this

case, the term of imprisonment imposed

shall be neither less than 10 years nor

more than 15 years.

We know that in Japan, the

judiciary is unique (there are no

constitutional, economic, criminal, civil

and other courts), it is based on the

principles of hierarchy. Therefore, the

country has a Supreme Court,

8 Supreme Courts (in Tokyo, Osaka,

Nagoya, Hiroshima, Fukuoka, Sendai,

Sapporo, and Takamatsu), 50 regional

courts, 50 family courts, and

438 disciplinary courts [11].

Family Courts with 50 regional

branches (same as district courts),

203 regional branches and 77 local

offices, between husband and wife,

father (mother) and child(s), divorce,

alimony, inheritance and other in addition

to disputes arising from family disputes,

criminal cases committed by minors and

civil disputes related to them shall be

considered and resolved substantively.

The jurisdiction of these courts includes

offenses and crimes committed by

minors, crimes against minors, and all

matters of family law related to the

protection of the rights and interests of

minors.

It is clear from worldwide

experience that the existing juvenile

justice system in Japan, that is, the

executive system with administrative

powers, protecting the interests of minors

in criminal, family, civil, and labor law,

also exists in European countries such

as France, Spain, Austria, and Hungary.

In the UK, the criminal liability and

punishment of juveniles are set out in the

Youth Justice Law and Criminal

Evidence Act (1999). Under English law,

minors are divided into 3 categories:

children (10 to 13 years old), adolescents

(14 to 15 years old), and young people

(16 to 17 years old) [5].


140

The court may impose one of the

following penalties for crimes committed

by children between the ages of

10 and 13:

1) controlling the behavior of the

minor in order to prevent him from

committing new crimes;

loading within the established

period (up to 3 years) and impose a fine

of up to 1000 (thousand) pounds;

2) forcing a minor not to perform

certain actions within a specified period

(up to 3 years) and imposing a fine of up

to 250 pounds;

3) conditional release from

criminal liability on the basis of a

probationary period of up to one year;

4) collection of fines from parents

or guardians (up to £ 250);

5) recovery of compensation (up

to £ 5,000) from parents or guardians for

damages;

6) forcing a minor to be in a

special center for a specified period (up

to 24 hours);

7) placement of a minor under the

supervision of the head of the probation

service (up to 3 years);

8) releasing from criminal liability

and punishment.

Similar penalties can be imposed

on juveniles between the ages of 14 and

15, and the amount of the fine levied on

both them and their parents can be

increased to £ 1,000. Moreover, those

aged 15 and over could face up to

2 years in prison. However, as an

alternative to imprisonment, up to

3 years can be handed over under the

supervision of the head of the probation

service. All criminal measures applicable

to juveniles between the ages of 16 and

17 may be applied. However, the

duration of stay in the special center

could be increased up to 36 hours.

As a result of the analysis of

foreign experience, it became clear that

today one of the most pressing issues in

our country is to further strengthen the

protection of the rights of minors,

improve the norms of juveniles in the

Criminal Code and Criminal Procedure

Code.

Furthermore, in each case, except

for the cases provided for in Article 54 of

the Criminal Code, when sentencing a

juvenile, as well as his level of

development, living conditions and

upbringing, health, including mental

development, motives for the crime, the

behavior of adults, information on

adverse effects, and other circumstances

affecting the individual should be

identified and evaluated [6].

Today, the urgency of these

issues and the protection of the rights


141

and freedoms of minors through the

consistent implementation of justice and

humanity principles in the legislation of

Uzbekistan, (on the one hand, the

liberalization of juvenile responsibility,

on the other hand, crime) has developed

following proposals to achieve the

implementation of advanced foreign

experience in the legislation.

Firstly, given that juvenile justice

is a legal reform that raises the age of

criminal responsibility, the Uzbek

Criminal Code should set the age of

criminal responsibility for juveniles at 14,

which does not criminalize juvenile

delinquency. This is not only the

instructions of international organizations

to Uzbekistan, but also the opinion of a

number of researchers in the field of

legal psychology. The reason is that a

person must be at least 14 years old to

realize the consequences of his or her

socially dangerous act.

Secondly, it is necessary to study

the best foreign experience and organize

separate courts to hear cases of citizens

under 18 years of age. Free legal help

should be introduced. After all, no minor

in our country should feel defenseless.

Thirdly, it is necessary to optimize

the penal system for juveniles in the

Criminal Code to eliminate the types of

punishment that are rarely used in

practice and adversely affect the

achievement of the intended purpose of

punishment, as well as to expand the

use of non-custodial punishments

(probation).

Fourthly, it is time to develop a

specialized code for dealing with minors.

This Code should regulate procedural

actions such as instituting criminal

proceedings against minors, conducting

a preliminary investigation, appointing a

criminal case for trial, reviewing the

legality, validity and fairness of court

hearings, judgments and rulings, and

enforcing the sentence.

CONCLUSION

In conclusion, these reforms will

pave the way for the introduction of

juvenile justice in the country, respect for

the rights and freedoms of minors,

reduction of crimes committed by them,

re-duction of government spending on

correctional facilities, as well as a new

level of judicial reform in Uzbekistan. In

addition, these reforms are expedient in

terms of Uzbekistan's international

obligations.


142

REFERENCES

1. Decree of President of the Republic of Uzbekistan “On additional measures to

strengthen guarantees of children’s rights” [Electronic resource] – access Mode:

https://lex.uz/docs/4302023 national database of legislation, 23.04.2019

no. 07/19/4296/3001

2. M.A. Xamidova Juvenile justice: how should it be? / M responsible editor DcS

X. Boboev. Tashkent ‒ TSUL. 2006. 40 p.

3. V. Artykova Priority directions of development of juvenile justice in Uzbekistan //

The system of protection of the rights of minors and young people: problems and

solutions. A collection of educational-methodical and scientific-practical articles. –

Tashkent: “KONSAUDITINFORM-NASHR”, 2008. – 400 p.

4. B. Ismailov. Criminal liability of minors: legislation of Uzbekistan and Germany:

Center for advanced training of lawyers under the Ministry of Justice of the Republic of

Uzbekistan; Under total. ed. A. Gafurov; – Tashkent: “Adolat,” 2011. – 120 p.

5. E.D. Kankishev Features of criminal responsibility and punishment of minors

under the legislation of Russia and foreign countries. Abstract. UDC 343.22 article 143.

6. S.A. Makhmudov. To take into account mitigating circumstances when imposing

punishment as one of the criteria for imposing a fair penalty. // Прогрессивные

технологии в мировом научном пространстве. – 2020. – P. 119-123.

7. United Nations Standard Minimum Rules for the Administration of

Juvenile Justice [Electronic resource]. https://www.ohchr.org/EN/ProfessionalInterest

/Pages/BeijingRules.aspx

8. Criminal Code of the Russian Federation. [Electronic resource].

http://pravo.gov.ru/proxy/ips/?docbody&nd=102041891

9. Penal Code of Japan. [Electronic resource].

http://www.japaneselawtranslation.go.jp/law/detail_main?re=02&ia=03&vm=02&id=1960

10. Juvenile Act of Japan [Electronic resource].

http://www.japaneselawtranslation.go.jp/law/detail_main?vm=02&id=1978

11. http://japan.kantei.go.jp/judiciary/0620system.html

https://lex.uz/docs/4302023

https://www.ohchr.org/EN/ProfessionalInterest%0b/Pages/BeijingRules.aspx

https://www.ohchr.org/EN/ProfessionalInterest%0b/Pages/BeijingRules.aspx

http://pravo.gov.ru/proxy/ips/?docbody&nd=102041891

http://www.japaneselawtranslation.go.jp/law/detail_main?re=02&ia=03&vm=02&id=1960

http://www.japaneselawtranslation.go.jp/law/detail_main?vm=02&id=1978

http://japan.kantei.go.jp/judiciary/0620system.html


143

PECULIARITIES OF THE LEGAL STATUS OF IMPRISONED MINORS

UDK: 343.915(042)(575.1)

Salokhova Sarvinoz Sadriddin qizi,

Official of the Ministry of Justice of the Republic of Uzbekistan,

Master’s Student

Theory and Practice of Criminal Law Faculty


A R T I C L E

I N F O

A B S T R A C T

Keywords:

minors, criminal

punishment,

correctional

colonies,

imprisonment,

education, post-

penitentiary

adaptation.

The aim of this article is to define a legal status and

specific features of minors who executed imprisonment

in correctional colonies. The article also describes the

ongoing reforms in the Republic of Uzbekistan to

expand the rights of prisoners. Furthermore, the norms

of the Criminal Executive Code of the Republic of

Uzbekistan to ensure the rights of imprisoned minors

are analyzed.

In this article, the international standards in

ensuring the rights and legitimate interests of minors are

described, and the legal norms and law enforcement

practices of foreign countries such as Italy, Latvia,


144

Great Britain, and Russia are compared.

In addition, the author gives suggestions to evolve

legislation of the rights and freedoms, particularly, the

right to get an education and the rights of convicts to

effectively assist in their post-penitentiary adaptation

during the release phase of minors who have been

sentenced by the legislation of the Republic of

Uzbekistan and the Criminal Executive Code.

INTRODUCTION

In recent years, active measures

were taken by the Government of

Uzbekistan in order to improve the

penitentiary system in the country, to

ensure the protection of the rights,

freedoms, and legitimate interests of

prisoners, to increase the effectiveness

of educational work on the moral

correction of imprisoned minors.

In the Action strategy on five

priority development areas of the

Republic of Uzbekistan in 2017‒2021,

there is a direction of priority areas for

ensuring the rule of law and further

reform of the judicial and legal system. In

particular, in this direction in

Paragraph 2.4 system improvement for

combating and preventing crime is

defined [1].

In addition, The Resolution of the

President of the Republic of Uzbekistan

“On measures to radically improve the

criminal law” was adopted on

November 7, 2018. This Law approved

the “Concept for the improvement of the

criminal law of the Republic of

Uzbekistan in 2019‒2021.” The concept

defines the following for the execution of

criminal penalties for minors:

- liberalization of the penitentiary

system;

- ensuring the social adaptation of

minors released from penitentiary

institutions;

- developing an education system

for minors who are being executed to

imprisonment [2].

Moreover, under the law of the

Republic of Uzbekistan dated March 14,

2019, amended and supplemented

Article 9 of the Criminal Executive Code

of the Republic of Uzbekistan, prisoners

are granted additional rights, such as to

outdoor activities in their free time, to

receive psychological help from the

penitentiary institution, and based on

labor legislation, to have safe working


145

conditions, to get rest, vacation, and pay

for labor.

In addition, in accordance with the

Law of the Republic of Uzbekistan of

June 30, 2020, the right of convicts to

personal security was expanded and

they received access to remote video

meetings.

As the doctor of science of law

N. Salaev notes, our state is on the way

of building a democratic state of law and

free civil society in all spheres of state

and public construction, boldly carrying

out reforms. In this regard, it is

necessary to abandon the various

repressive penal measures, to expand

the use of very effective crime prevention

economic sanctions, which, as a rule,

easily reach the consciousness of the

people, more accessible and positive in

the application, to use the institution of

public oversight [3].

The importance of ensuring the

rights of prisoners is emphasized in

international standards, in particular the

Standard Minimum Rules for the

Treatment of Prisoners of August 30,

1955, in the United Nations General

Assembly Declaration of December 14,

1990 Basic Principles for the

Treatment of Prisoners and in the

Recommendations No. Rec(2006) 2 of

the Committee of Ministers to member

states on the European Prison Rules of

12 January 2006.

The term “minor” is used to refer

to a person who is under the age at

which one legally assumes adulthood

and is legally granted rights afforded to

adults in society. Depending on the

jurisdiction and application, this age may

vary, but is usually marked at either

14, 16, 18, 20, or 21. The status of

minority ends at the age of majority. The

most common age of majority is age 18.

According to I.T. Turgunov, one of

the legal scholars who has studied the

legal status of minors, the subjective

rights of convicts are reflected in the

practical expression of certain forms of

behavior specified in the law or in the

use of certain facilities. The exercise of

these rights does not depend on the

behavior of the subject or his/her

personality or on other circumstances.

This means that a particular restriction of

the constitutional rights of juvenile

offenders does not depend on their

behavior, but such restrictions are

directly reflected in the law [4].

The analysis of international

standards indicates that in penitentiary

institutions the following should be

provided:

- prisoners should be required to

keep their persons clean, and to this end


146

they should be provided with water and

with such toilet articles as are necessary

for health and cleanliness;

- every prisoner who is not

allowed to wear his or her own clothing

would be provided with an outfit of

clothing suitable for the climate and

adequate to keep him or her in good

health. Such clothing should in no

manner be degrading or humiliating;

- every prisoner should, in

accordance with local or national

standards, be provided with a separate

bed and with separate and sufficient

bedding which is clean when issued,

kept in good order and changed often

enough to ensure its cleanliness;

- every prisoner should be

provided by the prison administration at

the usual hours with food of nutritional

value adequate for health and strength,

of wholesome quality and well prepared

and served;

- every prisoner who is not

employed in outdoor work would have at

least one hour of suitable exercise in the

open air daily if the weather permits.

Young prisoners, and others of suitable

age and physique, should receive

physical and recreational training during

the period of exercise;

- every prison should have in

place a health-care service tasked with

evaluating, promoting, protecting, and

improving the physical and mental health

of prisoners, paying particular attention

to prisoners with special health-care

needs or with health issues that hinder

their rehabilitation;

- every prisoner should have the

opportunity each day to make requests

or complaints to the prison director or the

prison staff member authorized to

represent him or her. It shall be possible

to make requests or complaints to the

inspector of prisons during his or her

inspections. The prisoner would have the

opportunity to talk to the inspector or any

other inspecting officer freely and in full

confidentiality, without the director or

other members of the staff being present;

- prisoners should be allowed,

under necessary supervision, to

communicate with their family and

friends at regular intervals;

- every prison would have a library

for the use of all categories of prisoners,

adequately stocked with both

recreational and instructional books, and

prisoners should be encouraged to make

full use of it.

It should be noted that the legal

status of convicts consists of the sum of

their rights, freedoms, legitimate

interests, and obligations related to the

type, purpose, and behavior of convicts


147

in the execution of the punishments. The

basis of the legal status of convicts is set

out in Article 8 of the Criminal Executive

Code of the Republic of Uzbekistan,

which consists of the following two parts.

The first part covers the general

legal status of citizens of the Republic of

Uzbekistan. The second part embraces

the special rights, legitimate interests

and obligations of convicts as subjects of

criminal-executive legal relations. These

special rights are valid only for the

duration of the punishments. The special

rights of prisoners may include, for

exaample, meetings, telephone

conversations, receiving parcels, purses

and banderols, and money transfers.

It should be noted that in

Articles 8‒13 of the Criminal Executive

Code of the Republic of Uzbekistan the

rights and obligations of prisoners are

established. All of the rules reflected in

these norms are in full compliance with

the content of the United Nations


Treatment of Prisoners.

The legal status of minors is

stated in the The United Nations


Administration of Juvenile Justice (The

Beijing Rules) was adopted by the

United Nations General Assembly in

November 29, 1985. In Paragraph 26.1

of these international rules, it is

established that the purpose of

educational work with minors in the

institutions of punishment execution is to

provide guardianship, protection,

education, and vocational training [5].

Furthermore, Article 9 of the

Criminal Executive Code of the Republic

of Uzbekistan defines the basic rights of

convicts, and the right to exercise in

accordance with this article applies to

minors as well. Under current criminal

executional law, minors may use the

following rights, in particular:

- to obtain information on the

procedure and conditions of punishment

and their rights and obligations;

- to appeal to the administration of

the punishment institution or body, other

state bodies and public associations with

proposals, applications and complaints in

their native language or in another

language;

- to get answers in the native

language that appeals to their proposals,

applications, and complaints;

- to provide explanations and

correspondence, and to use the services

of an interpreter if necessary;

- to use instructional and other

various information materials;


148

- according to the medical report,

to receive medical care in outpatient and

inpatient settings;

- to do physical exercise in the

fresh air during working hours, if weather

conditions permit;

- to receive psychological help;

- to have safe working conditions,

to get rest, vacation, as well as pay for

work.

Although the Criminal Executive

Code defines the legal status of

imprisoned minors, there are a number

of problems in law enforcement practice.

These problems are directly related to

the improvement of legislation aimed at

effectively ensuring the rights and

freedoms of prisoners.

In particular, according to the

experience of foreign countries, such as

Italy and Latvia, prisoners with positive

behavior are transferred to pretrial

detention. At this stage, the special rights

of convicts are not limited. Privileges

include inmate meetings, phone calls,

and daily walk use. The main purpose of

such rules is to ensure the post-

penitentiary adaptation of convicts to

social life after serving their sentences.

We can see that the same rule exists in

British law as well.

Moreover, in accordance with the

Penal Code of the Russian Federation

and the Republic of Kazakhstan [6],

convicts may be granted the right to wear

civilian clothes during the preparation of

juveniles for release and when they are

transferred to pre-trial conditions.

According to research, the main purpose

of this is that the appearance of special

clothing has a negative impact on the

psychological states and appearance of

minors.

Indeed, it is desirable that juvenile

offenders in correctional colonies are

allowed to wear civilian clothes in

preparation for their release from prison.

This will help restore the adaptation

process of minors to social life and their

“previous civilian image” after their

release from prisons.

One of the main ways to

rehabilitate juvenile prisoners in the

United Kingdom from foreign countries is

to educate them. The education of

prisoners in the United Kingdom’s

penitentiaries includes primary and

higher education. Forms of education

also vary: evening classes, full-time

education on certain days of the week,

open universities, correpondence

courses in colleges, special courses, and

special training courses for women.

Prisoners are educated free of charge,

mostly at the expense of sponsors and

charity organizations [7].


149

In recent years, German

penitentiaries have been expanding

prisoners’ right to education. Prisoners

are given the right to distance learning.

Special programs and innovative

manuals have been created for prisoners

to receive distance higher education, and

prisoners will be able to acquire

certain specialties by studying these

programs [8].

It should be noted that this

experience of German penitentiaries may

be implemented in the national legal

system. It is also advisable to develop

programs for distance learning of

prisoners in correctional facilities. To this

end, measures should be developed to

improve the material and technical base

of penitentiary institutions.

CONCLUSION

From the above we can conclude

that, firstly, it is advisable to gradually

implement the following measures for

convicts who have positive behavior and

are morally rehabilitated at the stage of

preparation of juvenile convicts for

release from punishment. This will help

them to adapt rapidly to social life later,

to restore their relationships with close

relatives:

- transfer of the sentence to a pre-

trial detention not later than three months

before the end of the punishments;

- allowing prisoners to wear in

civilian clothes;

- giving prisoners the right to

unlimited telephone conversations;

- allowing prisoners an unlimited

number of meetings with close relatives.

Secondly, after serving

sentences, convicts face to problems

with finding work. Because, persons

released from penitentiary institutions,

often remain without social assistance.

They cannot get a job; many of them

have nowhere to live. Together, all this

will create conditions that provoke former

convicts to commit new crimes. In order

to prevent these issues, the right of

convicts to higher education in

correctional colonies should be ensured.

Higher education shall be provided in the

form of distance or correspondence

courses, and the necessary conditions

shall be created for this by the

penitentiary institutions.

The implementation of these

measures would effectively contribute to

the protection of the rights and legitimate

interests of minors, their moral

rehabilitation and ensuring their post-

penitentiary adaptation.


150

REFERENCES

1. Decree of the President of the Republic of Uzbekistan on the National Action

Strategy on Five Priority Developmen Areas 2017-2021 of the Republic of Uzbekistan //

Collection of legislation of the Republic of Uzbekistan, 2017, No. 6, page 70.

2. Decree of the President of the Republic of Uzbekistan was adopted November

7, 2018 “On measures to improve completely of criminal-executive legislation,”

No. PD–4006 // Collection of legislation of the Republic of Uzbekistan.

3. Salaev N.S. Challenges to Use Alternative Jail Sentences to Promote

Prevention of Crime, International Journal of Research // February, 2017.

https://edupediapublications.org/journals.

4. Turgunov I.T. Legal position of convict: Textbook. – Тashkent: Academy of the

Ministry of Internal Affairs of the Republic of Uzbekistan, 2012. – P. 117.

5. The United Nations Standard Minimum Rules for the Adminstration of Juvenile

Justice (The Beijing Rules) adopted by the United Nations General Assembly in

November 29, 1985. https://www.ohchr.org/beijingrules.pdf

6. https://online.zakon.kz/document/?doc_id=30397169&mode=p&page=8

7. Protecting children’s rights in criminal justice systems: A training manual and

reference point for professionals and policymakers. Penal Reform International Head

Office 60-62 Commercial Street London E1 6LT United Kingdom. 2013.

https://cdn.penalreform.org

8. Niyozova S, Khojiev N. Legal status of convicts. Educational-methodical

manual. Editor-in-Chief: Ph.D., Associate Professor B.Khidoyatov. – Tashkent: TSUL

Publishing House, 2020. – P. 124.

https://edupediapublications.org/journals

https://www.ohchr.org/beijingrules.pdf

https://online.zakon.kz/document/?doc_id=30397169&mode=p&page=8

https://cdn.penalreform.org/


151

12.00.09 – Criminal action. Criminalistics. Operative-search law,

forensic expertise

PROCEDURAL STATUS OF THE SUSPECT IN CRIMINAL

PROCEEDINGS

UDK: 343.1(042)(575.1)

Mavlanov Kamoliddin Tuychievich,

Lecturer



A R T I C L E

I N F O

A B S T R A C T

Keywords:

suspicion, suspect,

accusation, defendant,

guarantee, right,

obligation.

This article, by comparative analysis of the

experience of developed foreign countries,

studied the status of the suspect as a

participant in the criminal procedure, his rights

and legal freedoms and obligations, the

guarantees of realization of these rights and

obligations, the essence of the criminal

procedural guarantees and their expression in

our criminal procedural law. Moreover, this

article covers such important issues as the

collection and consolidation of evidence in the


152

criminal process; the revision of the assessment

system with consideration of the standards of

proof, which are widely used in advanced

foreign experience; ensuring unconditional

compliance with the rights and freedoms of the

individual; improving the quality of procedural

actions. The evidence of his or her guilt is

understood as a reliable guarantor of the

involvement of a person in a criminal case as a

suspect, although this evidence is not enough to

attract a person as an accused, but it will be

enough to make a substantive assumption

about his or her guilt. The article examines the

differences between the suspect and the

accused, the relationship between the suspect

and the accused, and the fact that focus in the

emergence of suspicion is not on the guilt of the

person, but on his involvement in the crime. At

the same time, this article reflected the content

of the norms of the current criminal procedure

law aimed at protecting the rights of the

suspect, the existing gaps in them, and the

author's conclusions on their improvement. It

also shows the scientific views of procedural

scholars on the issue, the contradictions

between the viewpoint of scholars and the

author's personal opinions on the topic.


153

INTRODUCTION

As a result of the cooperation

policy of the Republic of Uzbekistan with

foreign countries, there is a need for a

comprehensive study of international

human rights standards. This need also

requires a reanalysis of the forms of

guaranteeing individual rights in criminal

proceedings, based on the experience of

developed countries. Before studying the

status of a suspect in criminal

proceedings, it is, of course, advisable to

analyze the meaning of the term

“suspect.” As the French scientist

Rene Descartes said: “clarifying the

essence of the word will save the world

from its half confusion.” [1] A cross-

comparative study of Anglo-Saxon and

continental legal systems led to the

general conclusion that in many states,

the term “suspect” is used when there is

a need to interrogate a person in relation

to a case, and it is used against persons

with restricted freedom of movement. In

the legislation of some countries we do

not see any clear differences between

the concepts of “suspect” and

“accused.” [2] It should be noted that

some scholars support the recognition of

a person as a suspect only after an

investigative action has been taken

against him [3].

Suspicion was not formed as a

separate function in criminal

proceedings. According to procedural

scholars, the function of criminal

prosecution begins at the same time as

the initiation of a criminal case [4].

Suspicion is seen as the first step in the

prosecution. This is due to the

emergence of the subject as a suspect in

the early stages of the investigation.

According to the Uzbek dictionary,

“suspicion” is derived from the Arabic

word “thought, hypothesis, doubt,” [5]

which means not believing or doubt in

the truth of something. Criminal

Procedural Code of Uzbekistan does not

define the concept of a suspicion. Unlike

an accusation, a suspicion is based on a

body of evidence indicating a person’s

involvement in a crime [6]. The inquiry

officer or investigator will have to rely on

the adequacy of the evidence before

charging a person as an accused.

The grounds for suspecting a

person of having committed a crime are

in Article 359 of the Criminal Procedural

Code of Uzbekistan. According to it, if a

person is detained on suspicion of

committing a crime on the grounds

provided for in Article 221 of the Criminal

Procedural Code of Uzbekistan, or if the

case contains information that gives

grounds to suspect a crime, he is


154

involved in the criminal case as a

suspect.

Article 221 of the Criminal

Procedural Code provides following

bases for the arrest of a person

suspected of committing a crime: 1) if a

person has been caught while

committing a crime or immediately after

committing it; 2) if witnesses of the crime,

including the victims, indicate him directly

as a person who committed the crime;

3) if there are obvious traces of the crime

committed on himself or on his clothes,

next to him or in his house; 4) there is

information that is the basis for the

suspicion of the crime of the person,

when he wants to escape or has no

permanent place of residence or his

identity is not established. However,

Article 359 does not specify “data giving

grounds to suspect him of committing a

crime in the case,” meaning that it is not

established exactly what kind of data will

be the basis. Article 82 of the Criminal

Procedural Code, nevertheless, clearly

states the grounds for accusing a

person.

Ensuring unconditional respect for

the rights and freedoms of the individual;

improving the quality of procedural

actions; collecting and consolidating

evidence in criminal proceedings;

revising the evaluation system based on

the standards of evidence widely

used in international practice; [7] and

improvement of criminal investigation

in our country in accordance with

international standards and advanced

foreign experience – are vital directions

for further improvement of criminal

procedure legislation of Uzbekistan.

A suspect in criminal proceedings is a

subject of special attention, whose rights

and obligations are enshrined in our

legislation. Based on the content of

Articles 47 and 48 of the Criminal

Procedural Code, a suspect is a person,

who:

- detained in accordance with

Articles 221 and 224 of the Criminal

Procedural Code;

- the measure of restraint has

been applied until the announcement of

the accusation;

- involved in a criminal case as a

suspect;

- although there is information that

he had committed a crime, this

information is not sufficient to summon

him to participate in the case as a

defendant. In other words, at a time

when it is not clear who committed the

crime, the suspects become important

subjects of the investigation [8].

The appearance of a suspect in a

criminal case is primarily seen in his


155

involvement in the committed act.

Therefore, the entry of a suspect into a

criminal case should be associated not

with the performance of the above

procedural action against him, but

primarily with the existence of grounds

for suspicion of a crime [9].

Consequently, it is possible to

understand a person involved in criminal

procedural legal relations on the basis of

available factual information of the

suspect and evidence indicating his

involvement in the case, but not sufficient

to prosecute [10]. A suspect is a person

who is temporarily involved in the pre-

trial phase of a case and whose status

will change once sufficient grounds for

criminal prosecution are established.

The rights of a person suspected

of committing a crime are firmly

enshrined in our criminal procedural

legislation. The investigative bodies

should treat the suspect as innocent, that

he has the right to remain silent [11], that

his/her rights should be explained before

the process of proving, and then

execution of procedural actions are also

provided for by international standards

on human [12]. Special guarantees are

required not only for the suspect, but

also for other persons involved in the

criminal case to fully realize their rights

and freedoms.

A guarantee is an economic,

political, and legal means aimed at


interests of an individual, which

constantly improves the content of the

rights of the individual [13]. In the theory

of criminal procedure law, procedural

legal guarantees are legal means aimed

at ensuring the implementation by

participants in criminal procedural activity

of their rights and obligations [14]. In

addition, it is advisable to take into

account the procedural obligations of the

court, prosecutor, investigator, inquiry

officer, officials of the body conducting

pre-investigation as guarantees of the

rights of a suspect. Thus, the level of

security of the suspect’s rights in itself

has a direct impact on the improvement

of the state’s position in international

rankings and indices in this area.

It is clear from the content of

Article 47 of the Criminal Procedural

Code that although there is information

that a suspect has committed a crime,

this information is not sufficient to involve

him in the case as an accused. The

difference between the probability level

of the suspect and the charge depends

on the evidence. The change of a

person's status from suspect to accused

depends on the degree of proof of his

guilt [15]. In general, both suspicion and


156

accusation are probabilistic. Reasonable

suspicion is considered to be a standard

of proof in criminal proceedings. In this

case, reasonable suspicion includes the

circumstances that give rise to the arrest

or search of the person [16], meaning

that a law enforcement officer must have

clear, impartial, fair, and reasonable facts

to suspect someone of a crime. In other

words, a suspicion is a presumption

about the subject of a crime and is an

incomplete knowledge of a fact or

situation [17].

The concepts of “suspicion” and

“suspect” are closely related to each

other, and it is impossible to imagine

them separately.

Only when there is a reasonable

suspicion, it is known that suspect will

appear in the criminal process, and this

suspicion may exist even before the

criminal case is instituted. In accordance

with the Resolution of the Plenum of the


Uzbekistan dated December 19, 2003

No. 17 “On judicial practice on the

application by the law on the protection

of the suspect and the accused,” in

cases where a person is detained on the

grounds specified in Article 221 of the

Criminal Procedural Code of Uzbekistan,

although the law stipulates that the

relevant report must be drawn up after

the person is brought to the police or

other law enforcement agency, he is

considered as a suspect from the

moment his right to freedom of

movement is practically restricted. From

that moment on the detained person

takes advantage of all the rights granted

to the suspect, including the right to

receive a defender, to call or send a

message to his close relatives or

solicitor, to refuse a testimony, as well as

to know that the testimony he gives can

be used as evidence against him in the

criminal case. Due to this, in such cases,

he may not be interrogated as a witness

until the decision on his involvement in

the criminal case as a suspect to be

announced to him, and without

explanation of his rights and obligations

the investigative actions may not be

taken against him. It can be concluded

that a person can become a suspect

even before the decision to engage in a

criminal case against him is made.

Evidence of his guilt is understood

as a reliable guarantee of the

involvement of a person as a suspect in

a criminal case, although this evidence is

not sufficient to prosecute as an

accused, but is sufficient to make a

reasonable assumption about his

guilt [18]. In the emergence of such a

suspicion the main focus is not on the


157

guilt of the person, but on his

involvement in the committed crime.

Simply put, if the suspect has a

predictive nature, the accusation will

have a confirmatory nature [19]. In this

way, one can also see the difference

between them.

At the same time, the status of the

suspect in the criminal procedural

legislation of a number of foreign

countries has different manifestations.

For example, in Austrian law, a person

suspected of committing a crime is called

a “suspect” and exists at the beginning of

the investigation process, and he

changes his status only in the final

stages of the investigation [20].

The initial investigation shall be

completed only by the prosecutor issuing

a bill of indictment or terminating the

investigation. The peculiarity of the

Swedish criminal process is that the

formal indictment of the suspect

(“Indictment”) takes place in the final

stage of the investigation, that is, at the

end of the initial investigation [21]: the

prosecutor shall submit a written

indictment to the court. Consequently, it

turns out that the person remains a

suspect throughout the initial

investigation.

In Finland, the burden of proof

has long been placed on prosecutors,

and even very strict requirements have

been established for the official

accusation of the person. As proof of

this, a person accused of committing a

crime is officially charged only at the final

stages of the proceedings [22].

According to the Article 82 of the

Norwegian Code of Criminal Procedure

[23], from the moment the prosecutor

declares an accusation against the

suspect, he will officially receive the

status of the accused. The Criminal

Procedure Code of the Netherlands

does not use the term “accused” and

does not even indicate the exact

differences between the suspect and the

accused. The person who committed the

crime in both the pre-trial period of the

proceedings and in the court takes part

in the status of a “suspect,” [24] that is,

even after the official announcement of

the accusation, the person retains this

status. The purpose of the initial

investigation is to collect information

about the suspect and the Act [25].

According to another source, the person

will participate as a suspect until the

prosecutor announces the indictment.

Under the Georgian legislation [26] only

the prosecutor has authority to accuse a

person. An important aspect is that in the

Criminal Procedural Code of Georgia the

suspect does not exist as an


158

independent subject. From the moment

the person is detained, he will be in the

status of the accused. Under Estonian

law, a suspect is a person who has been

arrested on suspicion of having

committed a crime or who has sufficient

grounds to suspect that he has

committed a crime [27]. He will remain in

his position until an indictment is filed

against him by the prosecutor. Once an

indictment has been issued in the final

stage of pre-trial proceedings, the

suspect will have the status of “accused.”

Under the legislation of Kazakhstan, a

person receives the status of a suspect

from the moment of detention or from the

moment of the decision is made against

him. Only after the indictment has been

drawn up by the prosecutor is the

suspect transferred to the accused. It

appears that in most developed

countries, the power to prosecute an

individual belongs only to prosecutors. In

the criminal procedural legislation of the

Republic of Uzbekistan (Article 361 of

the Criminal Procedural Code), an

inquiry officer, investigator or prosecutor

have right to issue a decision to involve a

person in participation in a criminal case

as an accused, and the person will be

charged with this decision. Based on the

experience of the above mentioned

foreign countries, we believe that it is

necessary to reconsider our national

legislation based on the stages of the

criminal process in determining the exact

status of the suspect, and his clear

differences with the accused. According

to some procedural scholars, the

accusation reflected in the decision to

prosecute a person, which is formalized

by the investigating authorities, has a

primary nature [28]. At the end of the

investigation, the state charge is formed

and it is supported by the prosecutor in

court. The decision to involve a person

as an accused is the initial document of

the accusation, and with the conclusion

of the indictment, the accusative activity

is completed [29]. The initial finding of

guilt of the perpetrator arises from the

criminal prosecution of him as an

accused, and there are scholars who

argue that in the initial investigation the

accusation does not contradict the

presumption of innocence because it is

not issued on behalf of the state [30].

The inquiry officers, the investigators are

civil servants who have the authority to

act on behalf of the state. Their actions

and decisions are a manifestation of the

realization of state functions. Their

finding of guilt does not mean that the

person is guilty; he or she is presumed

innocent by the state until the court

decision. The investigator uses the


159

norms of a recommendatory nature for

the court in expressing the accusation.

However, in our opinion, the indictment

provided for in the decision to prosecute

a person and reflected in the indictment

or act is unified in content, both of which

are based on the grounds provided for in

Article 82 of the Criminal Procedural

Code. Therefore, taking into account the

fact that the burden of proof, in the whole

world experience, is placed on

prosecutors, we think that it is expedient

to leave the authority to declare an

accusation only in the prosecutors and

the accusation must not be at the initial

stages of the investigation, but at the end

of the investigation, in the indictment or

act, that should be written after the

evidence has been fully collected.

In our current legislation, the

suspect participates in the criminal

proceedings as an independent

participant in the criminal process, and

his participation is not limited to a

specific time.

CONCLUSION

The negative consequences that

arise in relation to a person by engaging

in participation in a criminal case as an

accused do not imply liability for the

crime. They are carried out on a careful

condition, to ensure the actual

participation of the accused. In Anglo-

Saxon countries, it is not necessary to

issue a separate decision on the

clarification of the status of a suspect,

accused, or defendant.


160

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