Analysis of Judicial Practice on the Application of Principles of Administrative Procedures

Komron Tursunmurodov

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According to Law ‘On Administrative Procedures’ (from now on referred to as LAP), administrative acts as legal measure of administrative bodies should be legal. When these acts are illegal,  interested parties are entitled to file a lawsuit. This right is guaranteed by Article 55 of the Constitution, Article 4 of the Code of the Republic of Uzbekistan on Administrative Proceedings (hereafter referred to as the Code), and Chapter 5 of LAP. 

This blog post will analyze recent judicial practices (September 2022 – December 2023) of administrative courts on the application of principles in administrative procedures. The research uses 200 randomly selected administrative court decisions (granting plaintiffs’ actions) of Uzbekistan, adopted in 2022-2023.

Principles of administrative procedures

There are 13 principles of administrative procedures (Art. 5 of LAP), which include principles of  legality; the proportionality; the reliability; the opportunity to be heard; the openness, the transparency, and the clarity of administrative procedures; the priority of interested parties’ rights; the inadmissibility of bureaucratic formalism; the meaningful absorption; the implementation of administrative proceedings in “one window”; the equality; the protection of trust; the legality of administrative discretion (discretionary power); and finally research. 

These principles play a crucial role in guaranteeing people’s rights, freedom, and legal interests in relations with administrative bodies because non-compliance with these principles may cause the violation of people’s rights and subsequently entail the cancellation or revision of such administrative acts (Art. 9 of LAP). For example, Jizzakh region’s khokim (governor) adopted an unfavorable administrative act, returning the allocated lands of the ‘Tasty vegetable’ farming company to the district reserve without informing the entrepreneur establishing this company. This action violated the principle of the opportunity to be heard, as the company was not given a chance to express opinions about the circumstances relevant to the adoption of the administrative act. As a result, the court decided that the company’s rights were violated.

Furthermore, administrative bodies have to justify compliance with the principles of administrative procedures in adopting the administrative act (Art. 54 of LAP, Art. 67 of the Code). If they fail, the court can recognize this administrative act as invalid. Hence, administrative courts are able to make the principles work by checking how administrative bodies accurately and effectively abide by these principles.

Three groups of administrative courts

After analyzing and comparing 200 decisions, I used Prof. J.N. Nematov’s categorization and divided them into three groups depending on the application of LAP’s norms related to the principles. The first group tends to apply principles actively, the second – carefully, and the third one does not apply at all.

The first group of administrative courts actively apply the principles of administrative procedures. The research showed that 10 decisions out of 200 involved only one principle: the principle of the opportunity to be heard established in Article 9 of LAP. In these decisions, administrative courts provided clear interpretations on violation of this particular principle: ‘The administrative body is obliged to provide interested parties with the opportunity to express their opinion in all circumstances relevant to the adoption of the administrative act.’ In other words, before adopting either favorable or unfavorable administrative acts, administrative bodies should give a person an opportunity to express his or her opinion, position, and perspective. For example, khokim canceled an administrative act without informing the interested party about the cancellation. As a result, the interested party’s rights were violated as they could not give their opinions, and therefore, the administrative court recognized the latter decision as invalid.

However, administrative courts did not take into account the principle of legality. This principle means that administrative procedures must be carried out according to the Constitution of Uzbekistan, LAP, and other acts of legislation. According to the analyzed decisions, administrative bodies also violated the norms prescribed in Articles 33 (proper notice), 54 (administrative act’s entry into force), 55 (administrative act’s explanation and correction), 59 (administrative act’s cancellation, amendment or invalidation), and 60 (the procedure for canceling an administrative act) of LAP.  Thus, the principle of legality was also violated in this particular case; however, courts did not mention about this in their decisions.

The second group applies principles of administrative procedures carefully. Unlike the first category, these administrative courts applied various norms of LAP related to principles such as the principles of inadmissibility of bureaucratic formalism, research, opportunity to be heard, proportionality, and protection of trust. Interestingly, only 9 decisions out of 200 have included the above principles. These administrative courts provided full and clear interpretations of those principles.

For example, the prosecutor of Mirzo Ulugbek district protested khokim’s favorable to Hamidullin administrative act (about the allocation of lands and recognition of property rights), stating that it did not comply with the norms of LAP and other acts of legislation. On the basis of the protest, khokim canceled this administrative act. As a result, Hamidullin filed a lawsuit and demanded to recognize the cancelation as invalid. 

By analyzing this case, we can see the signs of violation on four particular of administrative procedures: the research, the protection of trust, the legality, and the opportunity to be heard.

Firstly, khokim did not take into consideration Hamidullin’s trust in the favorable administrative act since he constructed some buildings on allocated lands, which cost him a great deal of money. According to the principle of protection of trust, only conscientious interested parties’ trust is protected by law, and administrative bodies should respect their legitimate expectations. Hamidullin should have been compensated by khokimiyat (local municipality for the favorable administrative act’s cancellation. Secondly, khokim did not fully and comprehensively investigate the prosecutor’s protest. The prosecutor issued a protest based only on one normative act which did not regulate these legal relations.  Meanwhile, the protest did not have any legal connection with the subject matter of khokim’s administrative act; subsequently, khokim also violated the principle of research. In such case, khokim should have refused to satisfy the protest. Finally, khokim violated the requirements of Art. 33, 59, and 60 of LAP because he could not provide any evidence informing Hamidullin about adopting a new unfavorable administrative act. Therefore, the principles of legality and the opportunity to be heard were violated. Based on the violation of these principles, the court recognized khokim’s unfavorable administrative act as invalid. 

The third group does not apply the principles of administrative procedures, instead, it applies the norms of other laws established within Uzbekistan. For instance, while hearing administrative disputes related to licensing, registration procedures, and the provision of public services, administrative courts tend to apply the norms of Law ‘On Licensing, Permission and Notification Procedures’, Law ‘About E-government’, Law ‘On State Registration of Rights to Real Estate’, and etc.

However, they can use the norms and principles of LAP effectively because its scope also covers the above-mentioned relations (Art. 3 of LAP). In other words, these administrative courts do not rush to apply the principles of LAP in their practice albeit courts should be encouraged to apply the principles because the former’s decisions must be not only lawful but also well-founded (Art. 154 of the Code). In order to achieve a well-founded decision, courts have to interpret the principles of administrative procedures and apply them to both administrative bodies and interested parties.

Summary

This blog post aimed analyzing the judicial practice of administrative courts on the application of the principles of administrative procedures. The analysis showed that the application of these principles ensures courts make not only lawful but also well-founded decisions, which involve specific interpretations of legal norms and principles of administrative procedures to administrative bodies and interested parties. Although the present study had a limited scope of reviewing only a small number of court decisions, it illustrates that some administrative courts apply principles effectively; whereas, the others either use the principles carefully, or avoid using such principles in their decisions at all. Courts should be encouraged to apply the principles described in this article in order to reach well-founded decisions, that are required by law.

The following table summarizes the key findings of the analysis shared through this blog post:

Cite as:  Komron Tursunmurodov, “Analysis of Judicial Practice on the Application of Principles of Administrative Procedures”, Uzbekistan Law Blog, 23.02.2024.