MECHANISM OF APPEAL TO THE CONSTITUTIONAL COURT

This article describes the legal basis for the application of officials, citizens and legal entities to the Constitutional Court of the Republic of Uzbekistan. It also provides a comparative legal analysis of the procedure by which individuals can apply to the Constitutional Court in foreign countries, including the Czech Republic, Germany and the United States, and what issues can be grounds for appealing to the Constitutional Court. The article also discusses the problems that arise in the process of appeals of citizens and legal entities to the Constitutional Court of the Republic of Uzbekistan as well as the achievements of the new law on the appeal of the Constitutional Court, which is a constitutional right of citizens and the shortcomings and legal gaps in the development of a new law on the appeal of citizens to the Constitutional Court have been comprehensively analyzed and all the reflected problems proposals have been developed.

VOLUME 3 ISSUE №1 E-ISSN: 2181-1024 A P R Volume I L1 (2022) 3, Issue 2022 TSUL Legal Report 1

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TSUL LEGAL REPORT INTERNATIONAL ELECTRONIC SCIENTIFIC JOURNAL

Rustambekov Islambek Rustambekovich Deputy Rector on Academic Affairs, Tashkent State University of Law, Doctor of Law, Professor

Salaev Nodirbek Saparbaevich Deputy Rector on Research and Innovations, Tashkent State University of Law, Doctor of Law, Professor

Latipov Samir Ildusovich Director of the Center for Legal Initiatives and Innovations, Tashkent State University of Law

Nematov Jasur Aminjonovich Professor of the Tashkent branch of the Russian University of Economics named after GV Plekhanov

Umarkhanova Dildora Sharipkhanovna Dean of the Faculty of International Law and Comparative Legislation, Tashkent State University of Law, Doctor of Law, Associate Professor

Abzalova Khurshida Mirziyatovna Acting Professor of the Department of Criminal Law, Criminology and Anti-corruption, Tashkent State University of Law, Doctor of Law

Nematov Jurabek Nematulloyevich Acting Professor of the Department of Administrative and Financial Law, Tashkent State University of Law, Doctor of Law

Akhmedova Guzalkhon Utkurovna Associate Professor of Criminalistics and Forensic Examination Department of Tashkent State University of Law, Doctor of Law

Ergashev Ikrom Abdurasulovich Head of Scientific Department, Tashkent State University of Law, Associate Professor, Doctor of Philosophy in Law.

Yusupov Sardorbek Bahadirovich Head of the Department of Administrative and Financial Law, Tashkent State University of Law, Associate Professor, Doctor of Philosophy in Law

Gafurova Nozimakhon Eldarovna Head of the Department of International Law and Human Rights, Tashkent State University of Law, Associate Professor, Doctor of Philosophy in Law

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Khujaev Shokhjakhon Akmaljon ugli Head of Intellectual Property Law Department, Tashkent State University of Law, Doctor of Philosophy in Law

Uzakova Guzal Sharipovna Head of Environmental Law Department, Tashkent State University of Law, Associate Professor, Doctor of Philosophy in Law

Turdiev Khayitjon Usmonkul ugli Acting Associate Professor of the Department of Theory of State and Law, Tashkent State University of Law, Doctor of Philosophy in Law

Ramazonova Nargiza Abdirashidovna Head of the International Relations Department, Intellectual Property Agency under the Ministry of Justice of the Republic of Uzbekistan, Doctor of Philosophy in Law

Kurbanov Maruf Mamadaminovich Acting Associate Professor of the Department of Criminal Law, Criminology and Anti-corruption, Tashkent State University of Law, Doctor of Philosophy in Law

Narziev Otabek Sadievich Acting Professor of International Private Law Department, Tashkent State University of Law, Doctor of Philosophy in Law

Pirmatov Otabek Shavkatovich Acting Associate Professor of the Department of Civil Procedural and Economic Procedural Law, Tashkent State University of Law, Doctor of Philosophy in Law

Yakubova Iroda Bakhramovna Acting Associate Professor of Intellectual Property Law Department, Tashkent State University of Law, Doctor of Philosophy in Law

Shamsutdinov Behruz Sadriddin ugli Head of the Department of Commercialization of Scientific and Innovative Projects, Tashkent State University of Law

Saydakhmedov Umid Murodovich Judge for Economic Affairs, Tashkent Regional Court, Doctor of Philosophy in Law, Associate Professor

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Contacts Editorial office address: Tashkent, st. Sayilgoh, 35. Index 100047. Principal Contact Tel.: ([phone number hidden] Fax: ([phone number hidden] E-mail: info@legalreport.tsul.uz

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IKHTIYORJON TURABOEV, IKROM ERGASHEV Tax monitoring in Uzbekistan: problems and issues ............................................................8

DILMURODJON RAKHIMOV Organizational and legal issues of gender equality in the civil service .............................. 15

NOILA NURMAMATOVA Mechanism of appeal to the Constitutional Court .............................................................. 23

ILHOM NOROV Problems of public service in the Republic of Uzbekistan: further improvement of the public service system .............................................................................................. 30

12.00.03 – CIVIL LAW. BUSINESS LAW. FAMILY LAW. INTERNATIONAL PRIVATE LAW

BEGALI XOLMIROV The concept, importance and characteristics of electronic currency ................................. 37

MUHAMMAD ALI RAMAZONOV The concept and essence of cryptocurrency ..................................................................... 44

PARIZODABEGIM MUKHAMATKULOVA Some issues of regulation of cybersport and business activities in IT .............................. 51

12.00.04 – CIVIL PROCEDURES LAW. ECONOMIC PROCEDURES LAW. ARBITRATION PROCESS AND MEDIATION

ABDUMURAD KHAKBERDIEV Types of arbitration courts and their classification ............................................................. 57

DONIYORBEK DАVRONOV Procedure and basis for application of procedural coercive measures ............................. 68

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

BUNYOD ISLOMOV Mitigating factors and criminal defenses in criminal legislation of the Kingdom of Norway (comparative analysis) ...................................................................... 78

JALOLIDDIN HAYDAROV Qualification of crimes of torture and other cruel, inhuman or degrading treatment ......... 88

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12.00.09 – CRIMINAL PROCEDURE. CRIMINOLOGY, OPERATION SEARCH LAW AND FORENSIC EXAMINATION

SARBON URALOV Specific aspects of proof ................................................................................................... 96

KHAYDARALI YUNUSOV Contributions of Central Asian scholars to the development of islamic sciences: Sarakhsi – founder-father of international law ................................................................ 103

DJAMALIDDIN MUSAEV Principles of international cooperation in the field of preventing illicit trafficking in narcotic drugs, psychotropic substances and precursors . ........................................... 111

SHAHNOZA ALMOSOVA The essence of parallel import and problems of its regulation in the Republic of Uzbekistan . .................................................................................................. 121

USMON ALIEV Problems of reforming the UN security council and improving its effectiveness ............. 127

DALER VALIJONOV International legal cooperation of the prosecutors bodies against corruption ................. 134

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MECHANISM OF APPEAL TO THE CONSTITUTIONAL COURT

ARTICLE INFO Keywords: constitutional complaint, Constitutional Court, collegiality, actio popularis, Kelzen model, communal constitutional appeals, municipal appeals, direct access, indirect access, quasi actio popularis.

Nurmamatova Noila Doniyorovna, Master’s student, Tashkent State University of Law e-mail: nurmamatovanoila@gmail.com ORCID: 0000-0001-5093-0300

ABSTRACT This article describes the legal basis for the application of officials, citizens and legal entities to the Constitutional Court of the Republic of Uzbekistan. It also provides a comparative legal analysis of the procedure by which individuals can apply to the Constitutional Court in foreign countries, including the Czech Republic, Germany and the United States, and what issues can be grounds for appealing to the Constitutional Court. The article also discusses the problems that arise in the process of appeals of citizens and legal entities to the Constitutional Court of the Republic of Uzbekistan as well as the achievements of the new law on the appeal of the Constitutional Court, which is a constitutional right of citizens and the shortcomings and legal gaps in the development of a new law on the appeal of citizens to the Constitutional Court have been comprehensively analyzed and all the reflected problems proposals have been developed.

I. Introduction The Constitutional Court is the body that ensures the protection of fundamental rights within the law. This court is named differently in different countries. In particular, the Constitutional Tribunal in Spain and Poland, the Constitutional Council in France and the Supreme Court in the United States. It should be noted that in addition to the naming of constitutional courts, the subjects

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of applying to these courts also differ in terms of the stages of appeal.

The term of “constitutional complaint” applied in this paper refers to a legal remedy which takes the form of a complaint or lawsuit filed by an individual citizen who deems his or her constitutional right(s) has been violated by act an omission of public institution or public official. Generally such complaint may only be filed if all available legal remedies have been exhausted. It means that there is no legal remedies for the issue[1]. In many countries the authority to deal eith the issue is in the hand of a constitutional court.

Meanwhile, constitutional rights are rights derived from human right concepts which are stated into and become part of the constitution. Once such human rights have been adopted into and become a part of a constitution, the rights bind all branches state power divisions[2]. Therefore, a breach to constitutional rights means a breach to the constitution and the rights holder must be given have legal remedies to maintain his or her rights, which are guaranteed by the constitution. Constitutional complaints are one of such legal remedies.

The main constitutional court`s function is constitutional review, which includes both the constitutionality of legal norms as well as the constitutionality of actions or deeds. The constitutional review has two main tasks. First, maintaining the proper democratic process in a mutually intervening relationship between the legislative, executive, and judicial body. In other words, it means to prevent the seizure of power by one branch of state power at the expense of the others st. Second, protecting citizens` personal rights or lives against offenses committed by any branch of state powers[3].

Another important term is individual access to constitutional justice that, it means the various different mechanisms that enable violations of individuals` constitutionally guaranteed rights, either separately or jointly with others, to be brought before a constitutional court or equivalent body. Access mechanisms are either: indirect or direct. Indirect access refers to mechanisms through which individual questions reach the Constitutional Court for adjudication via an intermediary body. Direct access refers to the variety of legal means through which an individual can personally petition the Constitutional Court i.e., without the intervention of a third party[4].

In accordance with Article 20 of the Law of the Republic of Uzbekistan «On the Constitutional Court of the Republic of Uzbekistan», the Constitutional Court operates on the basis of the basic principles of the Constitution, such as the supremacy of the Constitution, independence, collegiality, transparency, disputes and equality of the parties.

The Constitutional Court determines the compliance of the laws of the Republic of Uzbekistan and the decisions of the chambers of the Oliy Majlis of the Republic of Uzbekistan, decrees, decisions and orders of the President of the Republic of Uzbekistan, decisions of the government, local authorities, contractual and other obligations of the Republic of Uzbekistan to the Constitution of the Republic of Uzbekistan; determines the compliance of the constitutional laws of the Republic of Uzbekistan with the Constitution of the Republic of Uzbekistan, the laws of the Republic of Uzbekistan on ratification of international treaties of the Republic of Uzbekistan before signing by the President of the Republic of Uzbekistan; gives a conclusion on the conformity of the Constitution of the Republic of Karakalpakstan with the Constitution; Considering the appeal of the Supreme Court of the Republic of Uzbekistan on the initiative of the courts on the compliance of normative-legal acts that should be applied in a particular case with the Constitution of the Republic of Uzbekistan; on the results of summarizing the practice of carrying out constitutional judicial proceedings annually provides information on the status of constitutional; Considers other cases within the framework of the competence given by

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the Constitution and laws of the Republic of Uzbekistan.

In this regard, referring to the consideration of issues in the Constitutional Court, in accordance with Article 27 of the Law «On the Constitutional Court of the Republic of Uzbekistan», the chambers of the Oliy Majlis of the Republic of Uzbekistan, the President of the Republic of Uzbekistan, the Cabinet of Ministers of the Republic of Uzbekistan, the chambers of the Oliy Majlis of, a group of senators, consisting of at least a quarter of the total number of members of the Senate of the Oliy Majlis of the Republic of Uzbekistan, the Supreme Court of the Republic of Uzbekistan, the Prosecutor General of the Republic of Uzbekistan, the account Chamber of the Republic of Uzbekistan, the National Center of the Republic of Uzbekistan for Human Rights, and If, in the opinion of citizens and legal entities, the law violates their constitutional rights and freedoms, does not comply with the Constitution of the Republic of Uzbekistan and is applied in a certain case, which has been completed, and is divided in court using all other means of protection, they are entitled to apply to the Constitutional Court with a complaint[5].

However, the above-mentioned bodies can apply to the court only within their competence. Albeit, to this day there was no possibility of an individual appeal to this court. The actio popularis on Kelzen`s true idea of constitutional control was rejected by the Constitutional Court of the Republic of Uzbekistan[4]. It is necessary to mention that, actio popularis may be defined as a “right resident in any member of a community to take legal action in vindication of a public interest”. Actio popularis implies that every person is entitled to take action against a normative act after its enactment, without needing to prove that he or she is currently and directly affected by the provision. As Kelsen put it, actio popularis is the broadest guarantee of a comprehensive constitutional review, as any individual may petition to the constitutional court. They are perceived as merely fulfilling every citizen’s duty as a guardian of the constitution. The complainant does not need to be a victim of a violation of their fundamental rights. Actio popularis plays a minor role in Liechtenstein, where several conditions need to be met in order to file an actio popularis, Chile, Malta and Peru. It has also contributed to clearing up the legal order in Croatia, Georgia, Hungary and “The former Yugoslav Republic of Macedonia”. In South Africa, an individual may approach the court in order to defend the public interest. However, Kelsen concluded that actio popularis did not provide a practicable means to affect constitutional review as it can attract abusive complaints. Most countries do not therefore include the actio popularis as a valid means to challenge statutory acts before the constitutional court. In Israel, individuals may petition the Supreme Court sitting as the High Court of Justice, alleging that their constitutional rights were violated. In addition, various human rights or other organizations may file a petition as “public petitioners” seeking to further general public interests. These groups are not required to show a personal interest in the petition, though they can file a petition on behalf of private petitioners that were directly affected by a governmental or normative act.

Here it is necessary to dwell on another concept. The institution of a quasi actio popularis takes up a middle position between the merely abstract actio popularis and normative constitutional complaint. The standing rules of quasi action popularis are more restrictive and thus avoid some of the problems related to actio popularis, as the applicant needs to prove that he or she has a certain legal interest in the general norm. The rules of standing are closely related to those applicable to normative constitutional complaint, except for the fact that an applicant does not need to be directly affected. They only need to establish that the legal provision interferes with their rights, legal interests or legal position.

That is, if it was necessary to determine the constitutionality of the disputed relationship, the individual did not have the right to apply

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to this court. In this respect, the status of the lower courts remains the same and in this case. When determining the compliance of a particular issue with the Constitution, ordinary courts can not apply directly to the Constitutional Court. Appeals can be made only through the Supreme Court. As an example, any judge in Germany, Italy, and Spain has the authority to directly apply to the Constitutional Court with a question. On the other hand, in Austria and France, too, the same as the rule of Uzbekistan, that is, only the Supreme Court has the right to apply for such a procedure[6].

Referring to the foreign experience of applying to the Constitutional Court, in accordance with the provisions of the Constitutional Court of the Czech Republic, there are three types of constitutional appeals and there are different types of Appeals for each type of complaint.

First, general constitutional complaints: these can be filed by an individual or legal entity to protect their fundamental rights or fundamental freedoms guaranteed by constitutional acts (in particular, the Charter of fundamental rights and fundamental freedoms). For example, in this case, a citizen, as an applicant, complains of dissatisfaction with the actions or decisions of any state body and may apply to his complaint a decision or violation of his constitutional right.

Secondly, communal constitutional complaints: this can be submitted to the Constitutional Court by the body of the territorial autonomous unit, or by a representative of the region, district or city. In such cases, the complaint concerns the right of local authorities of this state to self-government, as provided for in Articles 8, 99-105 of the Czech Constitution. (ensuring the right of autonomous regions to self-government, the basics of territorial self-governments). Such complaints are directed against unconstitutional or illegal intrusions of the state (central authority), which violates the rights of self-governing bodies, and the violation may arise as a result of the use of the constitutional or the body’s own status.

Thirdly, the complaint of the political party: it can only be filed by political parties as a complaint, the reason for which is given in order to continue as their parties and to protect the right of the state to operate without interference. Such complaints are directed against decisions of dissolution of the party, on decisions affecting their activities, these decisions can be submitted if they are contrary to the Constitution or are illegal. With this, political parties resort to the continuation of their activities and request the implementation of this activity without obstacles[7].

Another example of foreign experience in applying to the Constitutional Court is the Federal Republic of Germany. The authority of the German Constitutional Court to try constitutional complaint cases (in German, such cases are referred to as Verfassungsbeschwerde) is a part of its most widest authorities, either directly granted by the Federal Constitution (Grundgesetz, generally abbreviated asGG) or Law on the Constitutional Court of the Federal Republic of Germany (Bundesverfassungsgerichtsgesetz, commonly abbreviated as BVerfGG in German). It ensures that all parties, specifically state administrators, expressly comply with the constitution and implement it in the practice. In other words, a characteristic of Germany as a democratic constitutional state is explainednot only theoretically but also in practice – in this case, theconstitutionalism characteristic. According to German law, any person can file a constitutional complaint to the Federal Constitutional Court for the protection of his fundamental rights. It should be said that the constitutional complaint is considered separately from the appeal process before ordinary courts, and this is an urgent legal tool that only checks for violations of a particular constitutional law. These issues of appeal are further covered by the Basic Law and the Federal Constitutional Court law. That is, in 90§ of the Federal

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Constitutional Court of Germany, any person can apply to the Federal Constitutional Court in case of violation by the state bodies of the fundamental rights set forth in Articles 20, 33, 38, 101, 103 and 104 of the German Constitution (right of resistance, equal citizenship, elections, ban on extraordinary courts, fair trial, deprivation of liberty), if there are also powers of other courts in the matter of this complaint, this complaint must first be, it is noted that this complaint can be directly considered in the Federal Constitutional Court[8]. If a legal action against the violation is admissible, the constitutional complaint may not be lodged untill all remedies have been exhausted. However, the Federal Constitutional Court may decide immediately on a constitutional complaint lodged before all remedies have been exhausted if it is of general relevance or if recourse to other courts first would entails a serious and unavoidable disadvantage for the complainant. The right to lodge a constitutional complaint with the constitutional court of the Land in accordance with the provision of the Land constitution shall remain unaffected.

Also, in the Constitutional Court, local self-government bodies can appeal in cases of violation of their rights by laws. The constitutional complaints filed by the municipalities are as follows: the municipalities and the municipal associations themselves have the authority of state power. Thus, they are principially associated with fundamental rights, but they themselves are not owners of fundamental rights. However, they have the right to self-government (Part 2 of Article 28 of the Basic Law), which makes their position in relation to the state similar to that of the owners of the basic rights. The ability of the municipalities to file constitutional complaints reflects the need for this legal protection. Constitutional complaints filed by the municipalities have several specific features (Article 91 of the Federal Constitutional Court law). Municipal associations cannot claim a violation of fundamental rights or equal rights to fundamental rights, they can only claim that legal provisions violate their right to self-government (Part 2 of Article 28 of the Basic Law). If a similar complaint can be filed to the Constitutional Court of the relevant territory, the municipalities can not appeal to the Federal Constitutional Court with a constitutional complaint. Thus, the Federal Constitutional Court only has the «Reserve authority» to protect the guarantee of local self-government. As statistics it should be noted, constitutional appeals in Germany are the most common type of proceedings decided by the Federal Constitutional Court. In particular, in 1951, when the court began its work, 500 constitutional complaints were filed each year. Until 1980-th year, this number increased to 3,107. Today, the court review approximately 6,000 constitutional complaints annually[9].

In addition, even in the United States, where the independence of the court is considered the basis of the legal system[10], there are four different types of appeals to the Constitutional Court in the United States:

1. From the official circle. Here, a constitutional court hears a case sent directly by an official or agency, such as a speaker, ombudsman, president, corruption commission, human rights commission, election commission, or other independent body. In some cases, such an individual or body may initiate proceedings on behalf of an individual or group.

2. From the scope of legislation. In this case, any part of the legislature or any of its members may apply to the court for a petition.

3. By the court. In this case, when considering a civil or criminal case, when there is a need for a constitutional court interpretation between the two courts, that is, to resolve the dispute.

4. Personal direct application. According to that, every citizen (or even every legal entity, including foreigners, non-governmental organizations and companies) can apply when there is a question of violation of his or her constitutional right (for example, a violation of his or her real or potential

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constitutional rights). This also includes the involvement of civil society organization in public interest in the judicial case [11].

From the above information, we see that according to the Law of the Republic of Uzbekistan «On the Constitutional Court of the Republic of Uzbekistan», officials established in the legislation are authorized to apply to the Constitutional Courts on certain issues. Nevertheless, their scope of application is also limited by their competence. In addition, there was no right of persons to apply directly to the Constitutional Court, which was considered the main institution in the provision of constitutional control in Uzbekistan. This means that actio popularis, which was considered one of the main characters of the Kelzen model of constitutional control in Uzbekistan, is not implemented. The same situation was becoming a major obstacle to the status of the Constitutional Court of Uzbekistan as a defender of fundamental rights of citizens.

However, on April 27, 2021, the President of the Republic of Uzbekistan adopted the Law «On the Constitutional Court of the Republic of Uzbekistan».

According to this law, among the subjects entitled to apply to the court, the representative for Human Rights (Ombudsman) was included the representative for the rights of the child, the National Center for Human Rights, the representative for the protection of the rights and legitimate interests of business entities under the president, and, most importantly, citizens and legal entities. This situation provides a leap up in the activities of the Constitutional Court in Uzbeksitan. However, the new version of the Law “On the Constitutional Court” stipulates that citizens and legal entities may apply to the Constitutional Court if they believe that the law violates their rights and interests. In spite of the fact that, the law does not specify exactly what cases fall into this category.

Secondly, although it was noted that citizens can apply to the Constitutional Court, it is not clear who is meant by the concept of “citizens”. It would be desirable to give an explanation to this situation in this law.

Third, the direct appeal of the lower courts to the Constitutional Court is being left open until this moment. For this reason, the inclusion of lower courts in Article 27 of the mentioned constitutional law is considered appropriate.

In conclusion, with regard to applying to the Constitutional Court, some foreign practices show that individual persons, as well as self-governing bodies, have the right to apply directly to the Constitutional Court. Also, in the specified cases, constitutional appeals can be heard by lower courts. The comparative analysis of Uzbekistan with foreign countries on applying to the Constitutional Court indicates that new changes are necessary in the sphere of applying to the Constitutional Court of Uzbekistan, and in these changes, the mutual closeness of the citizen and the Constitutional Court must be ensured in all respects.