The civil procedural code of the Republic of Uzbekistan: some aspects of development and improvement
Мамасиддиков М. М. The civil procedural code of the Republic of Uzbekistan: some aspects of development and improvement // Молодой ученый. 2014. №4. С. 854-856.
From the first days of independence Uzbekistan chose the way of building a democratic state and a civil society. The tremendous changes have taken place in a historically short period in the life of our country, the appearance of our country has transformed radically, we have created a liberal, free and wealthy life which our people had been waiting with palpitation for several centuries. The successes we have achieved so far have been recognized by the international community because the successive reforms implemented on the way of building an open democratic legal state and a civil society based on socially oriented market economy yielded positive effects. In particular, the “Uzbek model” of development elaborated by the President of the Republic of Uzbekistan I. A. Karimov and recognized worldwide, has fully justified itself. The meaning and importance of this model is the fundamental renovation of the state system and constitutional regime, the separation of economy from ideology, ensuring its supremacy over policy, realization of the main target of the state as the main reformer, ensuring supremacy of the law, realization of strong social policy, implementation of political, economical and social reforms based on the principles of gradual and successive reformation.
The changes which have occurred in all spheres of the society life of our country necessitated a substantial renovation of legislative regulation of social relations.
The Constitution of the Republic of Uzbekistan, the Law on Courts, the Law on Prosecution, the Civil Code of the Republic of Uzbekistan, and afterwards the new procedure codes — the Civil Procedural Code and the Economic Procedural Code of the Republic of Uzbekistan have been adopted. The Concept on further deepening of democratic reforms and formation of civil society in the country was developed which provided that one of the key priorities of democratic development of the country is successive democratization, liberalization of judicial and legal system aimed at reliable protection of the rights and interests of personality, and accordingly, a number of organizational and legal actions have been taken for the purposes of effective solution of the problems in this field.
In the course of realization of the judicial reform and the target program, the significant results have been achieved. Currently a number of events are being gradually realized which are aimed at increasing the quality and promptness of implementation of justice. Along with full protection of the human rights and interests of persons, effective and operative implementation of legal proceedings is of actual importance. In this connection, currently the proper arrangement and effectiveness of justice are considered as one of the actual problems of civil procedural law.
The Civil Procedural Code of the Republic of Uzbekistan (CPC) adopted on August 30, 1997 was marked a new phase of development of the Uzbek civil legal procedure. The new CPC, reflecting the modern trends of development of legislation, provides a new definition to the content of the leading principles of the civil procedural law — the principles of adversarial and equality of parties, fixes the principle of examination of cases by a sole judge, makes significant changes in the institutes of appeal and protest against court’s decisions and introduces a simplified kind of proceeding which differs from the normal one.
The analysis of judicial statistics testifies that the number of civil cases handled by courts is steadily increasing, Currently, the courts of general jurisdiction (first instance) annually consider more than 140 thousand cases in disputes arising from civil, family, employment, residential and other legal relationships. It won’t be overstatement to say that the judicial protection has become the main form of protection of person’s rights.
The Civil Procedural Code, as well as other laws, are subject to revisions due to development of public relations, necessity of improvement of standards in the course of their application thereof. For the period beginning from 2000 till present, various amendments have been entered in this codified act including twelve laws which serve as an evidence for clear scrutiny of norms regulation of the adopted CPC.
Since the time of adoption of the CPC, the system of courts of general jurisdiction and the appellate procedure against judicial acts have undergone a significant modernization. The purpose of these innovations was to increase the effectiveness of examination, hearing and settlement of civil cases by courts of general jurisdiction.
Additionally, the legislator makes efforts to internal unification: uniformity of the norms of CPC, EPC both as regulations of courts activity, administration of justice in form of civil proceedings, and pursuing the goal of external unification: bringing the civil procedural norms in accordance with the international principles and standards of law, in particular, with the norms of the Convention on protection of human rights and basic liberties of 1950.
Development of civil procedural doctrine in modern conditions has reached the level when many problems of procedural science in the field of increasing the efficiency of justice have been subjected sufficiently to deep comprehension, recommendations of applied science have been introduced in the lawmaking activity and judicial practice on civil cases.
Thus, the procedural science has developed the notion of four kinds of remedies — statement of claim, complaint (application), application on cases of special proceedings, application to writ. The legislator, adopting the current CPC, positively perceived these scientific recommendations and legalized them on the legislative level. The lawmaker also positively perceived the theoretical provisions of prerequisites, conditions of the right to institute a civil case in court, etc. As scholars suggested the optimum balance of correlation of public and private interests in civil proceedings were retained.
Legal certainty of procedural legislation set by the current CPC, in our view, is a necessary condition for realization of the principle of legality in civil proceedings. The indefiniteness of procedural norms which have existed in the previous CPC often impeded adopting lawful and reasonable decisions in civil cases by courts.
The changes introduced by the laws can be divided into organizational ones adjusting the composition and structure of the judicial system, and functional aimed at changing the mechanism of filing appeals against judicial acts, improvement of diverse forms of simplified proceedings, introduction of alternative methods of dispute settlement.
The organizational reformations include introduction of appeal procedure of civil cases examination, formation of a panel of appeals implementing examination of judicial decrees which are adopted in first instance but haven’t become effective yet. Introduction of this institute was realized for the purposes of creating additional guarantees of rights to citizens to enjoy the protection of their infringed rights and legal interests and file appeals against judicial decrees of the first instance courts. Chapter 37 of CPC was renamed as “Appealing (Protesting) against Decisions and judgments of First Instance Courts”, the content of the cassation institute has radically changed. The circle of persons, who have the right to apply to examining the lawfulness, justification and fairness of judicial decree, has widened.
The functional changes in CPC are aimed first, at dissemination of appealing the method of examination of judicial acts of all courts of general jurisdiction adopted in first instance, and which are still not effective (chapter 37 of CPC). Whereas, chapter 37 has become more detailed, and appealing proceedings are realized according to the type of full appealing, i.e. the appellate court should examine court’s decision or judgment in full scope, and is entitled to issue the final act, without transferring the case to a new examination. Second, the essence and approach to cassation proceedings as a method of supervising effective judicial acts has changed (chapter 38 of CPC). Third, supervisory proceedings have attained the property of exclusiveness by means of specification and reduction of the grounds for cancellation of judicial acts with vesting these functions on a single body — the Presidium of the Supreme Court (chapter 39 of CPC). In case if the appealing method becomes universal substituting the cassation method, then there are no arguments for retention of a number of differences. In particular, this relates to the composition and powers of courts, when all cases in the appellate court are examined by a panel of judges, whereas in cassation the limits of examination of a case are brought to the limits of cassation appeal or protest.
The President of the Republic of Uzbekistan I. A. Karimov, in the speech “Conception on Further Deepening of Democratic Reforms and Formation of Civil Society in the Country”, discussing the reformation of cassation instance and introduction of appellate procedure for review of cases, has emphasized that the new supreme appeal instance can examine a case without returning it to a new consideration. The citizens obtained an opportunity to disagree with the legally effective judicial decree of the first instance court to protect directly their rights and legal interests in the cassation instance with the participation of their defense attorney. Thus, the practice of private, closed examination of citizens’ complaints against the decisions of the first instance courts was fully abolished. As the analysis of practice shows, these changes became an important guarantee of timely correction of errors committed by first instance courts, non-permissibility of procrastination in legal proceedings.
Timely protection of infringed rights and legal interests is directly related to simplification of judicial proceedings. Therefore, introduction of the institute of writ proceedings in the legislation created an opportunity for appearance of prompt and simplified procedure for examination of cases in essence without instituting a civil case hearing. The writ assists to ensure quicker and more effective implementation of justice, especially on such cases as recovery of alimony since the protraction of process leads to negative consequences. Introduction of simplified procedures in civil proceedings, in particular, in a writ proceeding, is sure to accelerate the case resolution. It significantly increases effectiveness and efficiency of judicial protection.
With introduction of the institute of writ proceedings, reduction of cases examined and settled by courts in essence became noticeable. For instance, if in 2011 the courts settled 304294 civil cases by applying writ procedure then in 2013 this indicator increased to 146044 civil cases, that, in turn, has led to noticeable reduction of loads on judges.
Law-enforcement practice shows that in some cases there are facts of non-fulfillment of the requirements of article 2389 of CPC of the Republic of Uzbekistan about sending a copy of writ to the debtor.
For the purposes of guaranteeing the protection of the right of a debtor in the process of writ proceedings (especially for recovery of debts for public utilities charges), it is proposed to supplement article 2389 of CPC of the Republic of Uzbekistan with the norm obliging a person to serve a copy of application to a debtor for recover while filing an application for writ. Similar legislative practice is provided in article 105 of the EPC of the Republic of Uzbekistan.
The idea of quick, affordable and fair justice in civil cases cannot be embodied without simplified procedures. Writ proceedings as a form of simplified procedures fully reflect this trend.
The civil procedural laws provide that in judicial case proceedings by agreement along with defense lawyers, there may participate other persons as (voluntary) representatives selected by the parties, the third persons. However, the analysis showed that the provision of poor quality of legal assistance by those persons for certain payment is often the reason for infringement of citizens’ legitimate rights and interests.
The Amendments and Supplements introduced in Article 52 of the Civil Procedural Code of the Republic of Uzbekistan created necessary legal conditions for realization of citizens’ rights to get skilled legal aids as well as development and increasing the role and status of the defense lawyers’ institute. The law consists of two articles and according to it, in a civil process, in addition to attorneys-at-law and one of accomplices by order of other accomplices of process, as a negotiated (voluntary) representative, there will participate:
- relatives by direct ascending line and descending or collateral line, as well as spouse or his/her relatives;
- employees of legal entities — in the cases of such legal entities;
- authorized representatives of noncommercial organization — in cases of such organizations;
- authorized representatives of noncommercial organization who are permitted by law to protect the rights and interests of other persons;
- persons as representatives of individuals permitted by court examining the case.
In addition, one important norm was fixed that only lawyers may carry on professional activity for cases at courts as a representative. This provides the right of citizens, enterprises, organizations and institutions for skilled legal assistance on each stage of proceedings fixed in article 116 of the Constitution of the Republic of Uzbekistan which enhances the role and prestige of the legal aid institute in the society, and moreover, prevents development of interference in the activity of courts, and finally, eliminates undesirable relations.
From the said above a conclusion may be drawn that a representative in the course of civil process can fully realize the objectives vested in him in availability of full-scale legal knowledge and qualification. As distinct from representatives of material law, a procedural representative is required to provide a competent legal assistance. Therefore, reflection in the national procedural legislation of a norm of admissibility of only professional lawyers to be engaged as a representative in legal proceeding is, first of all, of great importance for effective protection in courts of rights and liberties fixed by the Constitution of the Republic of Uzbekistan.
The expressed proposals should be considered as a part of measures for improvement of civil proceedings, for true realization of all its democratic principles, for final strengthening of political and social importance of judicial activity in all fields of society’s life.