by Jamshidbek Turdibekov
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November 19. 2021

1. Introduction

As for the legal nature of moral damage, despite it being an integral part of Civil Law, to this day it remains one of the controversial concepts that are difficult to measure. So, what is the concept of “moral harm” in the legislation of Uzbekistan? And in real life, what exactly is this topic based on?  This blog post will focus on revealing these points.

2. Case of Andrey Kubatin

We can see this in the following criminal case. The scholar of Turkic languages, Andrey Kubatin, a senior lecturer at the Tashkent State University of Oriental Studies, was accused of spying in favor of Turkey in 2017. He was convicted under Article 157 of the Criminal Code, that is, “treason to the state” and sentenced by the court to 11 years of imprisonment. But on September 26, 2019, Tashkent Criminal Court announced that the case of Kubatin was reviewed and cleared the accusations. On this issue, Kubatin’s family members came out with a petition for monetary compensation for the last 2 years’ 9 months’ salary, financial incentives paid for his scientific work, coverage for medications taken to prison during this period, and for moral damage of total 3.5 billion sums. 

What does the law say?

3. Legislative system

As it comes to the law, we approach it from a hierarchical point of view to systematizing it, initially, Article 27 of Chapter VII of the Constitution of Uzbekistan (personal rights and freedoms) states that “Everyone has the right to protect his/her private life from encroachment on citizens”.

Then, Article 1021 of the Civil Code of  Uzbekistan briefly explains what kind of action is considered morally damaging and recoverable:

“One of the conditions that rises the liability for moral harm is the guilt of the perpetrator. In general, to claim compensation for moral damage, a person must have committed an illegal act or omission. Such actions must be directed against the interests of the person, such as honor, dignity, health and property rights.”

Article 1022 deals with the “method and amount of compensation for non-pecuniary damage:

“Moral damage is covered by money. There are also two main aspects when determining the amount of compensation for non-property damage based on the “nature of the physical or moral damage” and the “degree of guilt of the offender”.

Also, Article 163 states that the statute of limitations does not apply for non-property damages. That is, a citizen can make a claim at any time. In addition, the main legal information on this issue is the decision of the Plenum of the Supreme Court of  Uzbekistan “On some issues of application of the law on compensation for moral damages”. This decision was adopted on March 28, 2000, and its importance can be seen in the fact that it is a normative document that deeply analyzes the legal norms on moral damage. It explains exactly what kind of damage is considered “moral”, aspects of moral damage in labor law, as well as the issue of compensation and the amount of compensation.

Having analyzed the legal act, which I mentioned lastly, in the case of Andrey Kubatin moral damage can be claimed only if it meets the following conditions:

First, the fact that moral damage occurred.

In other words, the fact of moral harm is compared to the result. For example, is moral damage caused by Kubatin’s imprisonment for 2 years and 9 months related to the illegal punishment imposed on him? Are tre other reasons? In particular, the moral damage suffered by Kubatin is the benefit lost during this period. This benefit, of course, was lost as a result of the actions of law enforcement bodies.

Second, the degree of guilt of the offender.

The judiciary and investigators had to rely on the rule of law in this case as well.      Kubatin’s sister, Clara, filed a lawsuit, claiming that he had not been treated humanely during the investigation and detention. Earlier, the Prosecutor issued a statement on the case, according to which Kubatin was not injured during the investigation, he did not complain about his health, his overall condition, or mental health.  His health condition was positively assessed by experts.

If we look at another case, the Military Court of the Republic of Uzbekistan on November 27, 2015, sentenced A to 10 years in prison on charges of committing a crime under Article 243 of the Criminal Code (Legalization of income from criminal activity). He was sent to the Jaslik prison. Three years and three months later, the Criminal Court of Cassation of Tashkent city declared A Innocent from any charges stated in Article 243 of the Criminal Code. A, who was wrongly accused, demanded compensation for non-property damage. However, when he did not receive the right amount of compensation, he decided to appeal to the Supreme Court. The Supreme Court considered a liability for damage which was caused by unlawful acts, and hardships experienced as a result of the unjust sentence in the Jaslik prison, A, and increased the amount of moral damage caused to him to 100,000,000 soums.

4. The mechanism for determining the amount of damage.

In civil law, measuring the amount of non-property damage is more complicated than measuring the amount of property damage. There are several problems with determining the amount of the penalty in cases related to compensation for moral damage. Currently, there is no clear legal concept on this issue, and even the Resolution of the Plenum of the Supreme Court does not provide an appropriate explanation.

According to N. Egamberdiyeva,  when determining the amount of moral damage, one should proceed from the degree of guilt of the offender. After determining the degree of guilt, it is also necessary to determine its amount. The issue of “amount” is also not clearly regulated in the legislation. The decision on the amount of damage is left to the discretion of the courts themselves.  But, unfortunately, this concept is not deeply explained in “On some issues of application of the law on compensation for moral damages” as well. 

Determining the amount of compensation for certain moral damage is a fundamental and yet complex part of the process. In my opinion, the most important thing is that the amount of moral damage is decided by the courts on their own, which, of course, raises the issue of different interpretations of the same situation by different courts.

Looking back at the case of Kubatin

As a result of the decision of Uchtepa district Civil Court in Tashkent city,  the lawsuit on the unfair imprisonment of Andrei Kubatin, the physical torture, and mental pressure carried out against him in prison, as well, compensation for the moral damage inflicted on Kubatin’s children, mother, and sister, was not satisfied.  However, on September 17, the Tashkent city Civil Court adopted a resolution on the recovery of moral damages in the amount of 150 million sums.

5. Conclusion

The issue of calculation and recovery of moral damage is one of the most delicate and complex issues in the civil law of Uzbekistan. Human rights in terms of moral damage are firstly protected by the Constitution. As we mentioned above, courts initially look at the link between crime and moral damage. That is a vital part of the process that leads to the process going correctly.  The next main step is about the amount of compensation. In fact, the more the damage, the more compensation will be paid. However, the courts have the right to determine the amount of moral damage independently. This leads to the fact that even though it is the same moral damage, the amount of compensation would be different by different courts. In order to reach predictability in this kind of case, one has to wait and see the practice of the Supreme Court in the coming years.

Cite as: Jamshidbek Turdibekov, “Judicial practice of Uzbek courts on moral damages caused by an illegal conviction”, Uzbekistanlawblog, 19.11.2021