Tolib Rakhmonov

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Introduction

In 2023, the principle of the active role of the court replaced the principle of competitiveness and equality of the parties. Since the active role of the court is a new principle, there is a need to reveal its essence and mechanisms of implementation. This blog post determines the meaning of this principle and the problems of its application and provides recommendations on improving its implementation mechanisms.

What is the principle of the active role of the court?

Initially, the Code on Administrative Proceedings (the CAP) did not stipulate the active court principle; it provided for the principle of competitiveness and equality of the parties. The court was only entitled to create the conditions for the parties to fulfill their procedural duties and exercise their rights. However, practice has shown that the principle of competitiveness prevented the ability of individuals (plaintiffs) to collect necessary evidence from administrative agencies (defendants). Although the parties were de jure equal before the court, they were de facto unequal in litigation. The administrative agencies have weighty evidence and professional representatives (lawyers) to defend their interests in the court. These factors put the plaintiffs in a weak position compared to a strong defendant. Therefore, the legislator replaced the principle of competitiveness with the active court principle (ex officio principle) to ensure a solid balance between the parties.

From now on, the court is not limited to explanations, statements, petitions of persons participating in the case (and not only the parties), the evidence presented by them and other case materials, but is obliged to comprehensively, fully and objectively investigate all the factual circumstances relevant to the correct resolution of the administrative case (Article 11). The ex officio principle intends to increase the ability of plaintiffs to effectively protect their rights and interests.

The legislation of most foreign countries provides for the principle of the active role of the court. For example, this principle is enshrined in the Code of Administrative Court Procedure of the Federal Republic of Germany and is referred to as the “principle of ex officio (investigation on duty).” In the Administrative Procedural Code of the Republic of Kazakhstan it is stipulated as the “principle of the active role of the court,” in the Administrative Procedure Code of the Republic of Azerbaijan – the “principle of investigation of the circumstances of the case.”

The ex officio principle assigned the court the obligation to collect additional evidence on its initiative, as well as to perform other actions aimed at solving the tasks of administrative proceedings. It is important to emphasize that this principle should not be interpreted in a narrow sense, associating it with the proof process, since it manifests itself not only in the proof process but also during the entire litigation.

What is the main problem of applying the principle of the active role of the court?

The principle of the active role of the court is not reflected in some norms of the CAP. In particular, the court, on its initiative or at the request of persons participating in the case, collects additional evidence (Article 11 of the CAP). However, the CAP does not mention the court’s right to summon witnesses on its initiative, albeit the witness testimony is one of the types of judicial evidence. According to the article 87 of the CAP, at the request of one of the parties, the court may summon a witness to testify at a court hearing. This rule assumes that the court can summon a witness only if there is a request from the parties. This provision restricts the court’s activeness in a certain way, preventing the full implementation of the active court principle. Judicial practice does not exclude cases when it becomes necessary to interrogate the parties as a witness if they directly participated in drafting a disputing administrative act. In such cases, the court must be able to interrogate this person as a witness regardless of the parties’ request. For instance, the Code of Administrative Court Procedure of Germany and the Code of Administrative Procedure of the Russia provide for the right of the court to summon a witness on its initiative.

What are the limits of court activeness?

Article 11 of the CAP establishes that administrative proceedings are carried out on the basis of the active role of the court, but the legislation completely excluded the adversarial nature of the proceedings. Although the administrative proceedings are conducted on the basis of the active role of the court, there is still an element of competitiveness, which is expressed in the following:

Firstly, Article 9 of the CAP emphasizes the importance of equality before the law and the court. Additionally, Article 40 specifies that parties involved in administrative proceedings are entitled to equal procedural rights. Furthermore, Article 39 states that participants in a case have a responsibility to fulfill procedural duties and to fully exercise their procedural rights. These provisions indicate the equality among parties.

Secondly, according to Article 67 of the CAP, individuals involved in the case must prove the factual circumstances to which they refer as the grounds for their claims or objections. That is, plaintiff must participate in the proof process and present evidence supporting its position. In addition, part two of this article specifies that the plaintiff is obliged to participate in the collection of evidence within their capabilities, and the plaintiff is also obliged to prove the amount of damages caused to it. This rule highlights that the burden of proof is placed not only on the defendant, but also on the plaintiff.

Thereby, implementation of the active court principle does not eliminate the adversarial nature of the administrative litigation. Based on this principle, the courts must be active until reaching equality and balance of power between the parties. After reaching this equality, the rules of competitiveness start to apply.

Recommendations for improving legislation on administrative proceedings

To improve the mechanism of the ex officio principle, as well as to eliminate problems associated with its application, the following recommendations are proposed.

Proposal 1. One of the main purposes of the court is to establish the truth, based on factual circumstances of the case. Consequently, administrative courts should be entitled to take the initiative to summon witnesses. In this regard, it is necessary to enshrine in the CAP the right of the courts to call witnesses on their initiative without any request of the parties. This amendment will strengthen the mechanism of the principle of the active role of the court.

Proposal 2. Although the administrative litigation remains as adversarial trial and the provisions of competitiveness still exist in the CAP, the principle of competitiveness has been completely replaced by active court principle. However, the active court principle and competitiveness principle are not mutually exclusive. Therefore, Art. 11 of the CAP should be renamed to reflect this dual emphasis and could be called “the principle of competitiveness and equality of the parties with an active role of the court.”

Conclusion

To sum up, the principle of the active role of the court may ensure genuine equality of the parties. However, the mechanisms of this principle are not sufficient due to the novelty of the principle and the lack of in-depth research on this issue. This blog post covers only some problems of this principle since this topic requires further, comprehensive study. Despite the parties in the administrative proceedings being unequal, administrative litigation still has an adversarial nature. In this regard, the principle of the active role of the court should complement the principle of competitiveness. The provided proposals accelerate the effective implementation of the ex officio principle. As a result, the tasks of administrative proceedings, including the protection of individual’s rights and legal interests, will be accomplished.

Cite as:  Tolib Rakhmonov, “Can the principle of the active role of the court ensure genuine equality of the parties to administrative proceedings?”, Uzbekistan Law Blog, 18.05.2024.