Tolib Rakhmonov

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Introduction

As in many democratic countries, state power in Uzbekistan is based on the principle of separation of powers into legislative, executive, and judicial. The judiciary, being independent, has a complex structure. The Constitutional Court (from now on referred to as CC) is one of the components of the judicial system in Uzbekistan. The CC’s activity is regulated by several legal acts, in particular by the Constitution, the Constitutional Law “On the Constitutional Court of the Republic of Uzbekistan” and the Rules of Procedure of the Constitutional Court. Unlike courts of general jurisdiction, the CC does not consider disputes related to violations of citizens’ rights and legitimate interests. This body is the main authorized subject of constitutional control. While everyone can directly apply to the courts of general jurisdiction, for applying to the CC citizens should follow certain procedures.

In this blog post, I will try to discuss the limitations and problems pertaining access to the CC. Moreover, I am going to analyze the practices of foreign countries and put forward some proposals to resolve the problems.

The essence of the problem

The Basic Law (2023 Constitution) of Uzbekistan establishes that the CC considers cases in compliance with the Constitution of acts of legislative and executive power. The new edition of the Law “On the Constitutional Court” (hereafter referred to as Law) has increased the number of subjects entitled to appeal to the CC. The main revision was to grant citizens the right to appeal to the CC. Consequently, in 2022-2023, the Constitutional Court reviewed 2,850 appeals from citizens, as well as examined 119 laws and 1,384 other legal acts’ compliance with the Constitution.

Article 86 of the Law regulates the procedure for applying to CC, according to which, citizens and legal entities could file a complaint to CC if they believe that the law applied to them in a specific court case did not comply with the Constitution. The complaints could be filed if all court remedies have been exhausted and within a year from the date of the conclusion of the court case. Based on this rule, we may say that there are the following conditions for applying to the CC:

Firstly, citizens can appeal only against laws. Although the Law established that CC defines the compliance of laws, resolutions of the chambers of Oliy Majlis (parliament), Presidential decrees, resolutions and orders, resolutions of the government, and decisions of the local authority with the Constitution, citizens may appeal only against laws. This limits the citizens’ access to constitutional justice since their rights can be violated not only by law but also by other legal acts, particularly by government resolutions, and decisions of local government authorities that contradict the Constitution;

Secondly, the appeal law must be applied in a specific case. This means that the law, which is supposed to violate the applicant’s rights and interests, must be applied in a specific case, for example, in courts of general jurisdiction. This type of constitutional control is called specific or incident control and excludes abstract constitutional control (examining the constitutionality of a law or its separate provision without connection with any case or dispute).

Thirdly, the appealed law must violate citizen’s rights and legitimate interests. It means that the appealed law must affect the applicant’s rights and interests. Meanwhile, no one else has the right to raise the question of whether a law complies with the Constitution if the appealed law did not violate their rights in a particular case. This rule also applies to subjects of public control;

Finally, citizens could file a complaint to CC only if all court remedies have been exhausted. The “exhaustion of all other judicial remedies” should be interpreted as the completion of all stages of the judicial process, including the initial hearing, the appeal, cassation, and review processes, where the appealed law was applied and considered at each level.

The presence of all these conditions is crucial for applying to the CC. The absence of at least one of these conditions serves as a basis for refusing to accept the complaint. This, in my opinion, restricts to a certain extent the citizens’ rights to constitutional justice. That’s why it is essential to simplify the procedure for applying to the CC.

The current problem of representation in the CC

The next issue is related to the institution of representation in constitutional court proceedings. The Law established that the parties have the right to participate in the CC personally and (or) through representatives. However, not all segments of the population can afford to hire a professional representative – a lawyer. The adoption of the Law “On the provision of legal assistance at the expense of the state” has become a guarantor of ensuring the constitutional rights to receive qualified legal assistance. According to this Law, low-income persons have the right to receive legal assistance at the expense of the state if they are participants in civil, administrative, and criminal courts (Article 9). However free legal assistance is not provided for low-income citizens to represent their interests in the CC.

Meanwhile, it would be fair to emphasize the advantage of constitutional legal proceedings. One of these important advantages is the absence of a state fee for applying to the Constitutional Court, while in some foreign countries, for example, in the Russian Federation, payment of a state fee is mandatory.

Foreign experience

Germany also has a Constitutional Court, which exercises constitutional control.
Article 93 of the German Constitution stipulates that the Federal Constitutional Court hears complaints from citizens if, in their opinion, the public authority has violated their constitutional rights. Citizens can appeal not only laws but also decisions of state bodies. If it is possible to appeal to other courts, a constitutional complaint can be filed only after all legal remedies have been exhausted. However, the Federal Constitutional Court may decide on a constitutional complaint lodged before all remedies were exhausted if the complaint is of general relevance or if prior recourse to other courts would cause the complainant severe and unavoidable disadvantage (Article 90 of the Act on the Federal Constitutional Court).

In Russian Federation, Federal Constitutional Law “On the Constitutional Court of the Russian Federation” regulates the activities of the CC and the procedure for judicial proceedings. Article 96 of this Law grants citizens and legal entities to file an individual or collective complaint against a violation of constitutional rights and freedoms. It is necessary to pay attention to the fact that, individuals and legal entities can appeal to the CC not only laws but also other normative legal acts. In particular, citizens can appeal against the Presidential acts, the acts of the Federation Council, the State Duma, the Government, or the legal acts of a subject of the Russian Federation. The law also establishes that the Ombudsman has the right to appeal to the CС in the interests of citizens and represent them in court. This norm demonstrates the significant development of the institution of representation in constitutional court proceedings.

Feasible solutions to the problems

In order to fully ensure citizens’ rights to judicial protection and access to constitutional justice, it is necessary to make some amendments to national legislation. Having analyzed foreign practice, I am going to put forward several proposals to improve the legislation on the constitutional court.

  1.  Citizens should be allowed to appeal to the Constitutional Court not only laws but also other legal acts that contradict the Basic Law. By “other normative legal acts” we mean resolutions of the chambers of the Oliy Majlis; Presidential decrees and resolutions; resolutions of the Cabinet of Ministers; orders and resolutions of ministries, state committees and departments; decisions of local government authorities (Article 6 of the Law “On Normative Legal Acts”).
  2.  It is necessary to improve the institution of representation in constitutional court proceedings. The Law grants citizens the right to participate in court hearings through their representatives. However, there are low-income segments of the population who cannot afford to hire a professional lawyer. Taking this into account, the Law “On the Provision of legal assistance at the expense of the state” needs to be amended. In particular, low-income persons should be granted the right to receive legal assistance at the expense of the state while applying to the CC. These changes will undoubtedly ensure social equality in society and guarantee the realization of constitutional rights of all segments of the population.
  3.  Citizens should be given the right to apply to the CC with a request to interpret the Constitution and laws. Currently, only certain state bodies and officials can apply to the CC with a request for interpretation of legal acts. Granting citizens the right to apply to the CC for interpretation can strengthen constitutional control and eliminate problems in law enforcement practice. Since the decisions of the CC are mandatory, all state bodies have to abide by the CC’s decisions.

Conclusion

It should be assumed that granting citizens the right to appeal to the CC has become an innovation and an important step toward ensuring full-fledged judicial protection. However, some problems still exist in realizing their rights to constitutional justice. In this blog post, I have tried to discuss some of these problems, which to a certain extent limit citizens’ access to constitutional justice, and tried to provide solutions to them. Of course, the given proposals may not be realized in the near future because of insufficient financial resources, material and technical base and staff of the CC to consider a huge number of appeals. Moreover, a small number of judges physically will not be able to comprehensively consider all appeals on time due to an increase in the judicial burden on the judges. But still, it is essential to simplify the procedure for applying to the CC step by step since citizens’ rights and interests are above all. 

Cite as:  Tolib Rakhmonov, “To what extent is citizens’ access to constitutional justice ensured?”, Uzbekistan Law Blog, 18.04.2024.