Written by Laylo Qarshiboyeva,

March 10, 2021

Image source: Kun.uz

Was the suspension of the series “Hukmdor Usmon” aired by My5 TV channel at the request of the Agency for Information and Mass Communications and the Committee for Religious Affairs? If so, will the TV channel’s damage (actual and lost) be compensated?

Nature of the Problem

The series “Hukmdor Usmon” was aired on November 30, 2020 on My5 TV channel. Two weeks later, on December 16, the show was called off. According to Kun.uz (one of the most active online publications in Uzbekistan), the letters from the Deputy Chairman of the Committee for Religious Affairs(CRA) Dilshod Eshnaev and the Agency for Information and Mass Communications (AIMC) served as the reasons for suspension. In an interview with Kun.uz,  Nozim Kadyrov, director of the My5 TV channel, said that the series were legally purchased from the film’s production company. My5 TV channal spent more than 3 billion soums for the translation, editing and other work of the series prior to airing. Meanwhile, from the reaction of the AIMC to this situation on February 5, it became clear that the suspension of the series on My5 TV channel were in fact  letters from the Deputy Chairman of the CRA Dilshod Eshnayev and the Chairman of the AIMC Asad Khojayev.

This blogpost analyzes whether the damage caused to the My5 TV channel by the state authorities should be compensated in accordance with the Civil Code as well as the kinds of remedies that are available for the TV channel under the Law on Administrative Procedures.

Remedies Available Within the Civil Code

 Should the damages to My5 TV channel be compensated for the suspension of the series?

Article 14 of the Civil Code defines the concept of damage and the issue of indemnification as follows:

Person whose right is violated can require full recovery of the losses caused to it if the law or the agreement do not provide indemnification in smaller size.

Losses are understood as expenses which person whose right is violated, made or will shall make for recovery of the violated right, loss or injury of its property (actual damage), and also the uncollected income which this person would receive in case of usual conditions of civil circulation if its right was not violated (lost profit).

The general grounds for liability for damage are set out in Article 985 of the Civil Code, according to which the damage to a citizen’s property as a result of an illegal act, as well as the damage to a legal entity, including loss of the benefit must be reimbursed in full by the person who caused the damage. The person who caused the damage shall be released from compensation if he proves that the damage was not caused by him and was not of his fault. The law may provide for compensation even if the person who caused the damage is not at fault. The damage caused by legal actions must be compensated in cases provided by law.  

         Moreover, Article 990 of Civil Code stipulates liability for damage caused by government agencies, citizens’ self-government bodies, as well as their officials. According to this norm, the damage caused to a citizen or a legal entity as a result of illegal decisions of state bodies, citizens’ self-government bodies, regardless of the fault of their officials, must be compensated on the basis of a court decision. The damage shall be compensated in accordance with the procedure provided for in Article 15 of this Code.

         Turning to the analysis of the Article 15, the losses caused to the citizen or the legal entity as a result of adoption of the act which are not in correspondence with the legislation, state body or self-governing institutions of citizens, and also illegal actions of their officials are subject to compensation by the state or self-governing institutions of citizens.

Indemnification can be assigned by the judgment to officials of state bodies, self-governing institutions of citizens because of whom the losses were caused.

However, the problematic side of the matter is that whether the actual damage and the lost profit of My5 TV channel were really caused due the fault of the state authorities. Proof of this matter is directly related to the issue of indemnification. If the damage was caused by the fault or illegal actions of the officials of the state bodies, the officials shall be obliged to compensate the damage by the decision of the court. If My5 TV channel suffered damage due to its own fault, the state authorities will not compensate the damage.

Remedies Available Within the Law on Administrative Procedures

Let us now consider this problem on the basis of the Law on Administrative Procedures(hereafter, “LAP”). Because the relationship between state bodies (the AIMC and the CRA) and legal entities( My5 TV channel) is an administrative legal relationship and is regulated by this Law.

It is clear from the AIMC’s statement on February 5 that My5 TV channeldid not take a state theological examination before the series were aired, and that they acted only by a decision of their own  council. Notice that the distribution of religious materials in the country without a religious examination contradicts the requirements of the Regulation on the Procedure for the State Theological Examination of Religious Materials, approved by the Cabinet of Ministers. Material intended for preparation, import, distribution in the territory of Uzbekistan shall be subject to examination, unless otherwise provided by the legislation of Uzbekistan. The examination is carried out on the basis of written applications from legal entities and individuals, as well as the documents/the communication forms from the relevant ministries and departments. So, here My5 TV channel should also be blamed for the suspension of the series, as it was necessary to apply for a religious examination before the movie series were shown.

Meanwhile, it must be also noted that there is a violation of  the principle of reliability,  Article 8  of LAP stipulates the following norm:

Documents and information on the facts provided by the interested parties during the administrative proceedings shall be considered reliable until proven otherwise. 

According to the letter that was sent to  the AIMC on December 2, 2020 by the CRA, the Turkish series of “Hukmdor Usmon” shows the negative attitude towards Christians due to religious differences between Turks and Byzantines, as well as the use of Sharia punishments in everyday life. The letter noted that there are some instances that lead to the misinterpretation of the concepts of jihad and martyrdom. However, this has not been officially proven. Namely, an examination has not been conducted yet, and its conclusion is not available. If these allegations were indeed reflected in the series, they should have been formally investigated on the basis of Regulation of the Cabinet of Ministers On the Procedure for Preparation, Import and Distribution of Religious Materials in the territory of Uzbekistan by the CRA which is the competent authority in this case. To be more specific, some kind of letter cannot be the legal basis, the above-mentioned circumstances on the series must be proved on the basis of the conclusion of a religious examination.

Conclusion

By and large, in the light of the analysis above, My5 TV Channel is to blame for this situation, as the channel did not apply to the competent authority for the examination before airing the series. Because, the preparation, import and distribution of religious materials in the territory of Uzbekistan should be carried out only after passing the state theological examination.  

With regards to the issue of  indemnification, if My5 TV channel can prove that the series was stopped due to illegal actions of the state authorities, the court will recover the actual damages and lost profits of the My5 TV channel. However, according to the AIMC’s  statement, the AIMC only warned My5 TV channel and asked for information on what to do next, but did not say  stop its broadcast. In order to do so, the series must be “cleared” of scenes related to various ceremonies and beliefs, in agreement with the CRA. It is not mandatory, but simply recommended. My5 TV channel was able to re-establish the broadcast of the series.

To sum up,  My5 TV channel must first apply to the competent authority (the CRA) for a religious examination of the series. According to the Regulations of the Cabinet of Ministers On the Procedure for State Religious Examination of Religious Materials, the examination will be conducted within 10 working days from the date of application. If, after a religious examination, the experts give a positive conclusion, then My5 TV channel will have the right to establish the broadcast of the series “Hukmdor Usmon” again.

Cite as: Laylo Qarshiboyeva, “My5 v. AIMC&CRA: available private and public law remedies”, Uzbekistan Law Blog, 10.03.2021.