Khаdji-Murod ISAKOV
The independence of judiciary is one of the fundamental principles of a democratic rule of law as well as a fundamental element of the right of fair trial. This factor is the starting, definition of the court in a democratic state, since in a dynamically developing society, the role of an independent judiciary, as an integral element of the rule of law and the system of comprehensive protection of human rights and freedoms, is certainly growing.
The guarantees of independence and impartiality of the courts are enshrined in national legislation at the highest level. Thus, Articles 106 and 112 of the Constitution of the Republic of Uzbekistan have become a solid legislative basis for the implementation of systemic and consistent measures in this direction. A deep in content and significant in scope work was carried out, which was aimed primarily at ensuring the full implementation of the principle of independence and impartiality of the judiciary, enshrined in the Supreme Law of our country, which contributes to the growth of the quality of justice, its transparency, accessibility, openness, efficiency, and most importantly, it serves as a complete and comprehensive protection of human rights and freedoms.
In recent years, large-scale transformations in the judicial and legal spheres have been taking place in our country, which laid the foundation for a modern new concept of the judicial system under the leadership of the President of the Republic of Uzbekistan – Sh.Mirziyoyev.
It should be noted that the process of democratic renewal of the judicial system was followed by powerful continuation and development in 2016-2017. It was at this stage of development that cardinal decisions were made which laid the beginning of a new, historical stage in the democratization of the judicial system.
As a result of the measures taken to reform the judicial system, the guarantees of reliable protection of the rights and freedoms of citizens have been strengthened, the structure of the judicial system has been radically improved, and the efficiency of the activities of the judicial authorities has been increased.
In particular, it is considered to be necessary to dwell on the following aspects:
First, within the framework of the implementation of the measures provided in the “Strategy of actions for five priority areas of development of the Republic of Uzbekistan in 2017-2021”, the Head of State issued Decree No. UP – 4966 of February 21, 2017 “On measures to radically improve the structure and increase the efficiency of activities of the judicial system of the Republic of Uzbekistan ”. In accordance with this Decree, the Supreme judicial council of the Republic of Uzbekistan (hereinafter referred as the Council) was formed, by abolishing the Supreme qualification commission for selection and recommendation of candidates for judicial positions under the President of the Republic of Uzbekistan.
The Council is the body of the judicial community, which is designed to assist in ensuring compliance with the constitutional principle of the independence of the judiciary. It should be noted that this reform is fully consistent with the Basic Principles of the United Nations concerning the independence of the judiciary (approved on August 30, 1997 by a resolution of Oliy Majlis of the Republic of Uzbekistan).
The specific attention shall be paid to the fact that the Council has a constitutional status, its activities are regulated by the Constitution and the Law “On the Supreme judicial council of the Republic of Uzbekistan” , which in turn also strengthens its independence and impartiality.
According to the provisions of the Decree, our country has introduced a new system for the selection of candidates and the appointment of judges, in which representatives of the judiciary, as well as civil society institutions take part. It is the Council that is empowered to select and form a highly qualified judiciary.
Noteworthy, the introduction of this institution made it possible to conduct an open and transparent formation of the judiciary on the basis of a competitive selection of candidates for the positions of judges from among the most qualified specialists, to ensure the genuine immunity of judges and prevent interference in their activities in the administration of justice, and to establish a dialogue between the judicial community and people.
In addition, the Law of the Republic of Uzbekistan of September 10, 2019 No. 566 “On amendments and additions to certain legislative acts of the Republic of Uzbekistan in connection with improving the activities of certain state bodies”, amended the Laws “On courts” and “On the Supreme judicial council of the Republic Uzbekistan” , according to which, a judge before being appointed to the position, is required to reach 35 years of age (previously – 30 years), and persons in the reserve of candidates who are appointed to the positions of judges for the first time shall undergo compulsory training at the Supreme school of judges.
Second, one of the large-scale transformations of the judicial and legal sphere and the organizational and legal guarantee of the independence of the judiciary in the Republic of Uzbekistan is the establishment of an indefinite period of office for judges.
Thus, the Law of the Republic of Uzbekistan dated April 12, 2017 established that a judge is appointed or elected in accordance with the established procedure for an initial five-year term, another ten-year term and a subsequent indefinite period of office.
This innovation fully meets the requirements of modern international and foreign experience. Pursuant to Article 12 of the UN Basic Principles on the Independence of the Judiciary of November 29, 1985 , judges, whether appointed or elected, have a guaranteed term of office until mandatory retirement or the expiration of their term of office, where applicable. In practice, this means that the judge retains his position until he reaches the age limit.
This measure has become the main guarantee of the irremovability of judges – one of the most important elements of their independence. It is significant that at present this rule is fully implemented in the law enforcement practice of our country.
Third, in Uzbekistan, organizational and legal mechanisms are consistently developing, aimed at ensuring a comprehensive protection of judges, as well as their immunity.
Thus, in the Republic, liability has been established for interfering with the activities of judges in the administration of justice. The legislation establishes that influence in any form on judges in order to prevent a comprehensive, complete and objective examination of a particular case or to obtain an illegal court decision entails criminal liability in accordance with the law (Article 69 of the Law “On courts”). The corresponding norm is also provided in article 236 of the Criminal code of the Republic of Uzbekistan .
It is for these purposes that a special structure has been created in the Council to ensure the immunity of judges. This structure, in fact, ensures the protection of judges from the above-mentioned unlawful interference in their activities, which also strengthens their independence and immunity.
Fourth, appropriate measures have been taken to ensure the transparency of the activities of the judiciary, expand open dialogue with the society and strengthen the role of the public in the administration of justice. So, in accordance with the provisions of the Decree of the President of the Republic of Uzbekistan No. UP-5482 dated July 13, 2018 “On measures to further improve the judicial system and increase confidence in the judiciary, ” the following is provided:
– gradual introduction of the procedure for the systematic publication of court decisions on the website of the Supreme Court of the Republic of Uzbekistan;
– introduction of the practice into daily operation of courts of giving clarifications to the participants in the trial of the essence of the adopted court decision after its announcement;
– conducting quarterly briefings by the chairperson of regional courts and their deputies in order to inform the public and the media about the activities of the courts;
– publication of quarterly reviews of the practice of considering court cases in the order of supervision by the judicial collegiums of the Supreme court of the Republic of Uzbekistan, in the appeal and cassation procedure – by regional and equivalent courts.
Since one of the most important tasks of reforming the country’s judicial and legal system, is related to strengthening the independence of the judiciary and increasing the effectiveness of judicial protection, the above-mentioned Presidential Decree also adopted Unified Tariff Schedule, according to which, the grades of remuneration of judges and employees of the Supreme court, lower courts, as well as the Department for maintaining the activities of courts at the Supreme court and its territorial divisions were established.
Fifth, the country is consistently developing organizational and legal mechanisms to ensure an effective and democratic legal mechanism for the selection and appointment of judges, as well as to improve their qualifications. A transparent, fair and independent procedure for the selection and appointment of judges has been established. Taking into account modern requirements, measures have been taken at the legislative level to organize a specialized educational institution.
We are talking about the decree of the President of the Republic of Uzbekistan No. PP-4096 of January 6, 2019 “On measures to radically improve the system of training candidates for the positions of judges, retraining, advanced training of judges and employees of the court apparatus” , in accordance with which the Supreme school of Judges under the Supreme judicial council of the Republic of Uzbekistan (hereinafter referred to as the Supreme school) was created to carry out training of candidates for the positions of judges, retraining, advanced training of judges and court staff through the way of:
– Organization of a unified system of training of candidates for the positions of judges, retraining, advanced training of judges and court staff;
– Introduction into the educational process of interactive teaching methods that develop skills of record keeping and critical analysis, making informed decisions using innovative pedagogical and information and communication technologies;
– Development of students’ theoretical knowledge and practical skills in the field of jurisprudence, professional ethics, psychology, business communication, time management, negotiation tactics, technology for working with information, interpretation and application of law;
– Organization of events on a regular basis for discussing topical issues of judicial and law enforcement activities, as well as law enforcement practice;
– Familiarization of listeners with current amendments and additions to legislation, the state and trends of domestic and foreign law enforcement practice, as well as experience in the field of rule-making;
– Implementation of deep fundamental, applied and innovative research work on topical issues of improving the judicial and legal system, the development of legislation and the formation of a uniform law enforcement practice;
– Training of scientific and production (practical) highly qualified personnel in the judicial sphere, as well as scientific and methodological support of judicial and legal activities;
– Analyzing legislation and law enforcement practice in the judicial sphere, study and generalization of judicial practice and statistics with the development of appropriate proposals and recommendations;
– Establishment of effective interdepartmental interaction with educational and scientific-research institutions that train candidates for the position of judges, improving the qualifications of judges and court staff in order to exchange experience, consolidating efforts to improve the quality of the educational process;
– Development of international cooperation in order to establish regular scientific research, exchange of information of a regulatory, methodological and analytical nature, attract foreign specialists to the educational and scientific process, organize internships for teachers, researchers and students.
With the formation of the Supreme school of judges, the existing procedure for the preparation of candidates for judicial positions has been radically changed. The new educational system makes it possible to improve the theoretical knowledge of candidates, teach them professional ethics, psychology, business communication and time management skills, negotiation tactics, technology for working with information, as well as the skills of interpretation and application of law.
In general, this conceptual document pays special attention for improving the quality of legal education, developing new forms and methods of training judges of various profiles, enhancing scientific research on topical issues of judicial practice, increasing the level of legal culture of judicial officials and legal literacy of the population.
It should be noted that the educational process at the Supreme school is carried out using modern forms and methods of teaching, advanced pedagogical, innovative information and communication technologies.
Candidates, who are in reserve for the position of a judge, are enrolled in the Magister`s program at the Supreme school in accordance with the established procedure, in accordance with quotas established by the Supreme judicial council of the Republic of Uzbekistan jointly with the Supreme court of the Republic of Uzbekistan.
The teaching staff includes the following positions: head of the department, professor, associate professor and teacher. In addition, the most experienced judges are involved in the training process, and the teaching is carried out according to the principle: “The judge trains the judge”.
The development of a system of continuous judicial education in the Republic of Uzbekistan is one of necessary conditions for establishment and security of the rule of law. Taking into account the importance of training highly qualified judicial personnel and their relevance in judicial activity in the country, the primary training of judges and judicial officers is carried out in order to meet the needs of professional judicial corpus. Judges are trained by implementation of specialized programs, with a specific focus on the field of their professional activity, but at the same time in light of norms of protection of the rights, freedoms and legitimate interests of citizens and organizations.
The judicial reforms in Uzbekistan are ongoing and the Decree of the President of the Republic of Uzbekistan № PF-6034 of July 24, 2020 “On additional measures to improve further the judicial activities and increase their efficiency ” can be considered as a vivid example. This Decree introduced following changes:
• The practice of reviewing court decisions by way of supervision was cancelled and respective rights of chairman of the Supreme Court, the Prosecutor General of the Republic of Uzbekistan and their deputies to protest the judicial decisions were abolished.
• regional and equivalent courts of general jurisdiction were created on the basis of the principle of “one court – one instance” and corresponding judicial collegia were formed while maintaining the strict specialization of judges. A feature of this innovation is the revision of decisions of interdistrict, district (city) courts by regional and equivalent courts, and court decisions considered on appeal can be reviewed in cassation by judicial collegiums of the Supreme Court of the Republic of Uzbekistan.
• a new procedure for the participation of the prosecutor in court has been introduced, according to which the participation of the prosecutor on his own initiative in the consideration of civil and economic cases in courts initiated by other persons, with the exception of cases provided for by law, as well as the reclamation from the court and examination of the case by the prosecutor, on to which the verdict, decision or ruling of the court entered into legal force only if there is an appeal by the parties in this case.
Regarding institutional changes in the judicial system, Article 107 of the Constitution of the Republic of Uzbekistan has introduced new structure of the state`s judicial system. According to it, new court instances were formed, such as the courts of the Republic of Karakalpakstan, regional and Tashkent city courts, the Administrative Court of the Republic of Karakalpakstan, administrative courts of regions and the Tashkent city, inter-district, district, city courts on civil cases, district and city courts on criminal cases, district and city courts on economic cases, and finally, district and city courts on administrative matters.
These structural changes, as a result of which, the courts of general jurisdiction were formed in the Republic of Karakapakstan, regions, and the city of Tashkent replacing regional and equivalent courts for civil, criminal and economic cases, serve as a solution to territorial barriers by creating the chance of resolving the issues in one place in the way of effective coordination of judicial activities.
In addition, the measures implemented in recent years for the widespread introduction of modern technologies into the activities of the courts have provided an opportunity to liberalize the institution of citizens and business entities applying to courts to protect their rights and interests; to increase the level of justice, as well as to ensure openness and transparency of the courts in general. As a result of the introduction of the Program for the implementation of modern information and communication technologies in the activities of courts for 2017-2020, new technological innovations have been implemented to ease judicial process, such as remote access to courts creating a chance for participation to take part in court proceedings through a videoconferencing system; automatic distribution of cases between judges; publication of court decisions on the Internet; and compulsory execution of documents in electronic form.
Likewise, new Resolution of the President of the Republic of Uzbekistan No. PP-4818 “On Measures to Digitize the Activities of the Judicial System ” has defined new additional steps to digitalize the judicial system and implement further technologies into the activities of courts, such as integration of communication platform between ministries and departments for mutual exchange of data necessary for the court case analysis and development of interactive services to ease the access of natural and legal persons to courts.
In particular, this act approved a program for the digitalization of the activities of the judiciary in 2020 – 2023, which provides for the introduction of a procedure for fixing court sessions in all courts by means of audio recording based on the petition of the parties in the case and with the consent of the presiding judge, the formation of court records using this system, notifications of all participants about the time and place of the court session by sending SMS messages free of charge, expanding access to court hearings remotely, including through mobile devices and other forms of electronic interaction, submitting court decisions to the parties in the case online, submitting and receiving court hearings files to the state archive in electronic form, etc.
In general, the abovementioned, measures, having become an important factor in the development of democratic transformations in the country, serve the main goal – “Man, his life, rights and freedom are the highest value.” This concept deriving its origins from Article 13 of the Constitution of Uzbekistan has become the most important foundation for strengthening the role of judiciary in the system of state power, ensuring the true independence of the judicial system, increasing the level of access to justice, as well as strengthening judicial power in ensuring reliable protection of the rights and freedoms of citizens.
Khаdji-Murod ISAKOV, is the Deputy Chairman of the Supreme judicial council, Director of the Supreme school of judges Republic of Uzbekistan, PhD in Law
