Preliminary observations on the official visit to Uzbekistan. United Nations Special Rapporteur on the independence of judges and lawyers Mr. Diego GARCÍA-SAYÁN
Members of the press, ladies and gentlemen,
At the invitation of the Government, I spent six fruitful days in Uzbekistan to examine the situation of the judicial system and the measures taken by the State to ensure the independence of judges and prosecutors and the free exercise of the legal profession.
I had the opportunity to meet with senior officials in Tashkent, Fergana and Samarkand, including the Ministers of Foreign Affairs, Justice and Internal Affairs, the chairs and members of the two branches of the Parliament (Oliy Majlis), the Prosecutor General, the Ombudsman, as well as with judges and magistrates from various courts and tribunals, including the Constitutional Court and the Supreme Court, members of the Supreme Judicial Council and of the Supreme School of Judges. The key moment of my visit was the honour to meet this morning with President Mirziyoyev in order to discuss the ambitious reform agenda that was launched after he became President in September 2016.
With the support of the UN Resident Coordinator and the regional office of OHCHR in Bishkek, I also met with a wide range of civil society representatives, including members of the Chamber of Lawyers (Bar Association), non-governmental organizations, defence lawyers, academics, representatives of the donor community, as well as members of international and regional organizations.
I wish to express my gratitude to the National Human Rights Centre and the Supreme Court for their support in the preparation of the visit, and thank all authorities for their availability and openness they have shown during my visit. It is my desire to continue the dialogue initiated ahead of and during the visit.
I also wish to thank all the defence lawyers and civil society activists who shared their views with me over the past week. I regret to say that some of these brave individuals have apparently been subject to intimidation prior to, or following their meeting with me. This is an issue of great concern for me and for the UN system as a whole. I have already express my concerns to Government representatives, and stand ready to continue to denounce any form of reprisal and intimidation against individuals and institutions as a result of their lawful cooperation with my mandate. I call on the Government to take all appropriate measures to ensure the physical and mental integrity of civil society representatives who interacted with me, and to carry out an investigation on these acts of reprisals.
Members of the press, ladies and gentlemen,
The judicial system is an essential check and balance on the other branches of government. The role of the courts is to ensure that the laws adopted by the Parliament and the executive acts of the Government comply with international norms and standards. In order to enable national courts and tribunals to play this role, it is necessary to ensure that they are truly independent from the other powers of the State. It is also necessary to put in place the conditions for ensuring the effective realisation of the right of access to justice for all.
The declaration of independence from the Soviet Union in 1991 did not translate in the dismantlement of the authoritarian and centralised structure that Uzbekistan had inherited from the U.S.S.R. The judiciary continued to be under the control of the executive power. The Procuracy retained a preminent role in criminal proceedings, whereas the role of the judge was limited to rubber-stamp the requests made by the prosecutor in the indictment. The role of the defence counsel was, at best, ornamental.
Due to their lack of independence, Uzbek courts were unable to play their essential role in in ensuring that victims of human rights violations obtain effective remedies and protection; that perpetrators of human rights violations are brought to justice; and that anyone suspected of a criminal offence receives a fair trial according to international standards. The lack of an independent justice system also constituted an enabling factor for corruption and impunity, which were widespread in the country.
Today, at a time where a number of democracies – including long established democratic system in Western and Central Europe – show a worrying backslide towards authoritarism and executive control over the judiciary, the wind has started to blow in the opposite direction here in Uzbekistan. Under the leadership of President Mirziyoyev, the country has embarked in a far-reaching reform of the judicial system, which aims at strengthening the independency of the judiciary and the effective realisation of the principle of separation of powers.
The journey towards a fully independent judicial system remains a long one, but there are several elements that allow all of us to look at the future with a more positive outlook.
First of all, the political climate. The days of isolation are over, and Uzbekistan is now opening up to international scrutiny, as the invitation extended to me demonstrates. In my meetings with State authorities, I was glad to hear that many of my interlocutors regard the transition towards democracy and the rule of law as an irreversible process. And despite the several concerns that I have brought to the attention of the national authorities, and that I will raise during the course of my presentation, I have perceived an encouraging openness on the part of the Government to consider the recommendations that international and regional human rights mechanisms have to offer.
“When there is a will, there is a way”, says an old adage. Nevertheless, political will needs to translate into systematic and durable changes. During my visit, I was able to look at the initial results of the judicial reform and to discuss them with President Mirziyoyev. The gist of this reform is to reduce the political interferences that judges are subject to, so as to enable them to decide matters before them impartially, on the basis of facts and in accordance with the law.
Some of the positive changes introduced in recent years include:
- The establishment of the Supreme Judicial Council as a constitutional body with a broad mandate to insulate the judiciary and judicial career processes from external political pressure;
- The enactment of a number of measures, including the establishment of the Higher Judicial School under the Supreme Judicial Council, aimed at strengthening the initial and continuous training of judges;
- The progressive move towards stability of judges in office;
- The transfer of a number of administrative and technical functions relating to the court administration from the Ministry of Justice to the new the Department for Supporting Court Activities, established in the Supreme Court;
- The regular publication of court decisions on the website of the Supreme Court, and the gradual establishment of electronic procedures aimed to increase transparency and facilitate access to justice;
- The creation of safeguards aimed at improving the independence of the Chamber of Lawyers from the executive branch;
- A number of key reforms in the area of anti-corruption policies, including the adoption of a Law “On Anti-Corruption” and the creation of mechanisms for the implementation of anti-corruption measures.
An encouraging indicator of a progressive move towards judicial independence is represented by the increase in the acquittal rate in the last three years. In 2016, only 6 acquittals had been recorded. The number raised to 263 in 2017, and to 867 in 2018. In the first nine months of 2019, more than 500 individuals have been acquitted.
Although these statistical data need to be considered with a pinch of salt (one-fourth of the acquittals were requested by the prosecutors themselves, for example), they nonetheless demonstrate a gradual move from a system where the judges’ autonomy was limited to simply confirm the requests made by the prosecutor in the indictment to a system in which judges are enabled to exercise a more independent role.
Members of the press, ladies and gentlemen,
Notwithstanding these positive developments, a number of challenges continue to undermine the independence of the judiciary as an institution and the capacity of individual judges to decide the case before them solely on the basis of their conscience and in accordance with the law and the facts of the case. The measures adopted by the President only constitute initial steps, and are not sufficient to ensure genuine judicial independence.
In order to establish whether the judiciary can be considered “independent” of the other branches of government, we need to focus, among other things, on the procedure for the appointment of judges, on the existence of sufficient guarantees to protect individual judges against outside pressure, on the conditions of service of judges, and on the actual independence of the judiciary from political interference by the executive and legislative branches of power.
In general terms, despite the measures adopted to strengthen judicial independence in the country, the current system remains hierarchical, with excessive influence of the court presidents, political bodies and prosecution authorities. In my view, the de facto vertical power structure existing in the Uzbek court system and the various forms of interference of the legislative and executive branches of power in the appointment and dismissal of judges should be eliminated as a matter of priority. The de facto control exercised by the prosecution service through the closing indictment and the visible presence of State security services in the daily life of Uzbek citizens and public institutions, which contributes to create a climate of fear, adversely affects the independence of the judiciary and access to justice and should also be eliminated.
In order to strengthen the independence of judges and prosecutors and the independence of the legal profession, an initial first step would be the express recognition, in a new provision the Constitution, that international norms and standards on human rights take precedence, in case of a conflict, over legislative and regulatory standards enacted by national authorities.
Other concerns that have been brought to my attention during my visit include:
(a) Selection and appointment of judges: the criteria and the procedure for the selection of candidate judges should be reviewed. The procedure for the selection and appointment of judges should be based on objective criteria previously established by law or by the Supreme Judicial Council. Decisions should be based solely on merit, having regard to the qualifications, skills and capacities of the candidates, as well as to their integrity, sense of independence and impartiality. Decisions on the appointment of judges should be taken solely by the Supreme Judicial Council, without the involvement of the executive branch. If judges continue to be formally appointed by the Head of State, such an appointment should be made on the basis of the recommendation of the Supreme Judicial Council that the President follows in practice.
(b) Security of tenure: security of tenure constitutes an essential guarantee against interference by the executive or other appointing authority in a discretionary or arbitrary manner. Following the recent changes in the regulation on the duration of tenure, the initial five-year term can now be extended to ten years, and subsequently turned into unlimited, life-long term of office. This is a positive step in the right direction. Gradually, and on the basis of an evaluation carried out in accordance with clear criteria established by law, judges should acquire security of tenure. Uzbekistan should establish clear criteria and procedure for reappointing judges, so as to ensure that they are duly evaluated.
(c) Training of judges: the establishment of the Higher Judicial School under the Supreme Judicial Council in lieu of the Centre for Advanced Training of Lawyers, which was subject to the authority of the Ministry of Justice, is a positive step in the reform of the judicial training system. In order to strengthen the autonomy of the High Judicial School, it is recommended that the activities, as well as the content and arrangements for the initial and continuous training of judges be regulated by law or, alternatively, by resolution of the Supreme Judicial Council. In particular, the development of human rights education programmes for judges is essential to ensuring a solid foundation for democracy and the rule of law.
(d) Role of chairpersons: the extremely broad powers that court chairpersons have in relation to a wide range of matters pertaining to the selection, promotion, evaluation and discipline of judges has an adverse impact on judicial independence. In particular, court chairpersons should not be vested with powers concerning judges’ salaries and bonuses. The current procedure for appointment of court chairpersons by political authorities should also be reviewed, so as to ensure that chairpersons be elected by their peers through an objective procedure clearly established by law or by regulation of the Supreme Judicial Council.
(e) Disciplinary proceedings: the existing grounds for initiating disciplinary proceedings against judges are too general and broad, in particular the one referring to “violation of the rules of ethical judicial conduct”. The grounds and procedure for conducting disciplinary proceedings against judges should be regulated by law, and the responsibility for carrying out such proceedings should be vested in an independent authority composed primarily of judges, such as a judicial council or a court. Court chairpersons should be divested of their power to initiate disciplinary proceedings.
(f) Supreme Judicial Council: the procedure for the selection and appointment of members of the Supreme Judicial Council is not fully consistent with international legal standards. In particular, the current discretionary power of the President to appoint the Secretary and seven members of the Supreme Judicial Council should be revoked. While it is commendable that the current composition of the Council includes a majority of judges, it is recommended that non-judge members include legal experts (e.g. lawyers, academics, civil society representatives with an acknowledge reputation and experience in the field of law) without any connection with the legislative or executive branches of power. Judge-members of the Council should be nominated and appointed by their peers, while the selection and appointment of lay members should be preferably entrusted to a non-political body.
Turning to the prosecution service, and in addition to what I have already said in relation to the need to limit the overly broad power of the prosecutor in criminal proceedings, I am of the view that the broad supervisory functions of the prosecution authorities, which are based on the Soviet model of a prosecutor’s office, are inconsistent with the principle of separation of powers. They also bear considerable corruption risks, since they concentrate a considerable amount of power in hands of a hierarchical structure headed by an official appointed by political bodies. For these reasons, I recommend that the competence of the prosecution service should be limited to the criminal sphere. Other functions currently exercised by the prosecution service should be transferred to relevant institutions of the executive branch of power.
The procedure for the of appointment and dismissal of the Prosecutor General does not provide sufficient guarantees to prevent undue political influence from the legislative and executive branches of power. The development of clear and objective criteria and procedure for the selection and appointment of the Prosecutor General and the involvement of civil society in the procedure could strengthen the transparency of the process and reduce the risk of politicization of the prosecution service.
With regard to the selection and career of prosecutors, I believe that the current system, in which all prosecutors are appointed by the Prosecutor General for a five-year term, cannot be regarded as being consistent with international standards relating to the independence of the prosecution services. I recommend that an institution of prosecutorial self-government, such as a Prosecutorial Council, be established to strengthen the independence of the prosecution service and deal with all issues relating to the prosecutorial career. Such body should be independent of the Prosecutor general, and consist of a majority of prosecutors elected by their peers. The Council should also include representatives of the civil society to avoid or minimize any risk of corporatism.
In relation to the legal profession, I am extremely concerned about the low number of lawyers in the country. At the moment, approximately 4,000 lawyers are licensed to practice law, and the majority of them reside and work in Tashkent. In remote areas of the country, there is a dramatic shortage of lawyers, which has a dramatic adverse impact on access to justice. I call on the legal profession to adopt all appropriate measures to facilitate the access to the legal profession of young law graduates. I also recommend that new law schools be created outside the capital. This would facilitate access to law courses for students wishing to undertake the legal profession.
The reform of the legal profession of 2008 had the effect of bringing the Chamber of Lawyers under the authority of the Ministry of Justice. I note with concern the role that the Ministry of Justice continue to exercise in accordance with the law in relation to the appointment and dismissal of the President of the Chamber. I took note of the willingness of the Ministry of Justice to renounce to his competence in this regard, and look forward to a future reform on the law on the bar association aimed at bringing this legislation in compliance with existing standards relating to the independence of the legal profession.
With regard to the access to the legal profession, I was glad to note that a recent reform of the Bar Association reduced the number of members of the Ministry of Justice in the qualification commissions from three to one. As in the case of the appointment of the President of the Chamber of Lawyers, I encourage the Ministry of Justice to renounce to its prerogative to sit in the qualification commissions, which are responsible, among other things, for granting access to the legal profession, developing codes of professional conduct and handling disciplinary proceedings against lawyers.
Finally, many lawyers I have met with brought to my attention the difficulties they encounter in having access to clients, particularly during pre-trial detention, or in meeting them in private and in conditions that guarantee full confidentiality. I recommend that severe penalties be imposed on authorities of detention centres or prisons that prevent or limit the right of lawyers to assist clients held in detention facilities.
Some defence lawyers denounced being victims of threats, harassment or reprisal as a result of their identification with their clients or their clients’ causes or interest. In itself, this may be regarded as a positive sign, but could also be seen as evidence of the gravity of the threats that lawyers defending political figures or people accused of terrorist activities are exposed to. I would like to reiterate that it is the duty of all State authorities to respect the role of bar associations in protecting their members, so as to ensure that they are able to carry out their professional activities without any intimidation, hindrance, harassment or improper interference.
Ladies and gentlemen,
This is my preliminary assessment on the status of the justice system in Uzbekistan. It covers only a fraction of the issues that were brought to my attention during my meetings, and I encourage State authorities and civil society actors to continue to send information that will help me develop my official report, which will be presented to the United Nations Human Rights Council in June 2020.
I stand ready to ask any question you may have in relation to my visit.