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ABSTRACT
The participation of the prosecutor in the consideration of civil cases in court is one of the long-standing, main and
lasting areas of activity of the prosecutor’s office of our country
.
Article 4 of the Law of the Republic of Uzbekistan “On the Prosecutor’s Office” dated August 29, 2001 (in a new
edition) provides for participation in the consideration of civil cases in courts, protesting judicial acts that do not
comply with the law - as
the main activities of the prosecutor’s office [1].
KEYWORDS
Civil Procedure, courts, protesting judicial, rights, freedoms, protesting legal acts.
INTRODUCTION
In article 3 of the first Law of the Republic of
Uzbekistan No. 746-
XII “On the Prosecutor’s Office”,
adopted on December 9, 1992, participation in the
consideration of civil cases in courts, protesting judicial
acts that do not comply with the law is also defined as
one of the main activities of the prosecutor’s office [2].
If we turn to history, the Civil Procedure Code of the
Uzbek SSR, which was in force before the introduction
of the Code of Civil Procedure of the Republic of
Uzbekistan, adopted after our country gained
independence, provided that prosecutors exercise
control over the specific implementation of its laws in
civil proceedings, it was also established that the
Research Article
ISSUES OF PROTECTING THE LABOR RIGHTS OF CITIZENS IN COURTS BY
THE PROSECUTOR
Submission Date:
November 01, 2022,
Accepted Date:
November 10, 2022,
Published Date:
November 18, 2022
Crossref doi:
https://doi.org/10.37547/ijhps/Volume02Issue11-04
Jasur A. Djabbarov
Independent Researcher The Academy Of The
Prosecutor General’s Office
, Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijhps
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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prosecutor at all stages of the civil process is obliged to
take timely measures provided for by legislative acts to
eliminate any violations of the law, regardless of who
these offenses come from [3].
Article 46 of the Code of Civil Procedure of the Republic
of Uzbekistan, adopted on August 30, 1997, also
provides for the participation of the prosecutor in civil
proceedings, according to which the prosecutor has
the right to apply to the court with a statement in
defense of the rights of legally protected interests of
other persons, and also to participate from the
beginning of the proceedings initiated on the initiative
other persons, it is also stipulated that the
participation of the prosecutor in the proceedings of a
civil case is mandatory in cases where it is provided for
by law or when the need for the participation of the
prosecutor in this case is recognized by the court, as
well as in cases initiated at the request of the
prosecutor[4].
According to Article 50 of the Civil Procedure Code of
the Republic of Uzbekistan, adopted on August 30,
1997, if a citizen is not able to personally defend his
rights, freedoms and legitimate interests in court for
health reasons, age or other reasons, the prosecutor
has the right to apply to the court with an application
for protection violated rights.
The prosecutor has the right to participate in the
proceedings of a civil case only in cases provided for by
law, as well as in cases initiated at the request of the
prosecutor [5].
The activities of the prosecutor in court to protect the
rights of employees are one of the most pressing issues
of prosecutorial supervision. At present, such cases of
violation of labor rights as employment of citizens,
termination of an employment contract, dismissal,
payment of wages, benefits and compensations, etc.
are common in our republic. The settlement of
disagreements between the employee and the
employer, who are parties to labor disputes, due to
unequal opportunities, status, is considered somewhat
difficult. Due to the fact that the employee is in a
subordinate position in relation to the employer, and
he is not always ready for a conflict with the employer,
the fear of losing his job at a time when society faces
big problems regarding current employment leads to
the fact that the employee suffers a violation their
labor rights over time. This, in turn, also indicates that
labor offenses are hidden. At the moment, the
following data also show that this issue is very relevant
even on a global scale: the number of people who face
discrimination in labor relations is more than one
hundred million, 255 million jobs were lost in 2020
alone [6], as well as $3.7 trillion in wages [7].
On the scale of our country, one can see that from year
to year the number of labor disputes in courts is
increasing. For example, when performing labor tasks
in the 1st half of 2020, the number of cases on which a
decision was made was 43 cases on compensation for
property damage to employees (54 in the
corresponding period of 2021), 760 (1460) cases on
reinstatement, 731 (1011) cases on the recovery of
wages, while the total number of cases on labor
disputes for the corresponding period of 2021
amounted to 2525, i.e. increased by 991 compared to
the same period in 2020 [8].
THE MAIN FINDINGS AND RESULTS
According to the data for January-June 2022, the
number of cases considered by civil courts regarding
labor disputes amounted to 4974, of which in 3041
cases the claim was satisfied, in 851 cases it was
rejected, in 902 cases the claim was not considered,
and in 180 cases - clerical work terminated [8].
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All of the above indicates that the improvement of
legislative acts aimed at ensuring the participation of
the prosecutor in the effective protection of the labor
rights of the parties to the employment contract
through the court, the study of the procedural and
legal status of the prosecutor in the effective
protection of labor rights, which are important social
rights of citizens, the study of the procedural features
of participation of the prosecutor in the consideration
of cases on reinstatement in court is becoming
increasingly relevant.
The international conventions and recommendations
of the International Labor Organization, the
Constitution of the Republic of Uzbekistan, the Labor
Code, the Code of Civil Procedure, the Law “On the
Prosecutor’s Office”, which are the current legal acts
regulating the activities of the Prosecutor’s Office to
protect the labor rights and legitimate interests of
employees, establish the procedural rights of the
prosecutor in civil process and legal means of their
implementation. However, the current Labor Code
does not contain a special provision providing for
guarantees related to ensuring the labor rights of
employees. Consequently, Article 8 of the current
Labor Code is limited to the fact that the protection of
the labor rights of every person is guaranteed, and that
this protection is carried out by the bodies that verify
and control compliance with labor legislation, as well
as by the bodies that resolve labor disputes. .
Therefore, it is proposed to include in the Labor Code a
separate article providing for a guarantee of ensuring
the fulfillment of labor rights and labor duties, and to
establish in it the means and methods to ensure the
fulfillment of labor rights and labor duties. It is the
establishment of these means and methods that
serves as the legal basis for the implementation of
prosecutorial supervision over the implementation of
labor legislation. In this regard, as means and methods
to ensure the fulfillment of labor rights and labor
duties, it is proposed to establish the following:
Realization of the rights of employees and employers
established in labor legislation and other regulations
that include relations on labor rights, as well as in an
employment contract;
Fulfillment of the obligations of employees and
employers established in labor legislation and other
regulations, which include relations on labor rights, as
well as in an employment contract;
Protection of labor rights of employees and employers
and restoration of violated rights;
The responsibility of the employer for violation of labor
legislation, labor rights of employees, as well as the
responsibility of the employee for violation of labor
duties.
The study of the legislative experience of foreign
countries on the protection of the labor rights of
citizens by the prosecutor in the courts is important.
According to Article 133 of the Constitution of the
Republic of Azerbaijan [9] and Article 40 of the Civil
Procedure Code of the Republic of Azerbaijan [10], if it
is necessary to protect the rights of citizens, the
prosecutor has the right to apply to the court with a
statement or participate in the trial at any stage of the
case. The prosecutor is obliged to participate in civil
proceedings when the need for the participation of the
prosecutor in the case is provided for by law or
recognized by the court.
In Armenia, the prosecutor has the right to apply to the
court in order to protect the interests of the state
(Article 103 of the Constitution, part 3 of Article 37 of
the Code of Civil Procedure) [11]. The prosecutor has
the right to protest against court documents in a case
considered with his participation (Part 3 of Article 28 of
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the Law “On the Prosecutor’s Office”). At the same
time, the Prosecutor’s Office of Armenia does not have
the authority to protect the labor rights of citizens in
court [12].
In accordance with the first part of Article 124 of the
Constitution of the Republic of Moldova, the
prosecutor’s office protects the rights and freedoms of
citizens, promotes the administration of justice [13]. In
accordance with Article 71 of the Civil Procedure Code
of the Republic of Moldova and Article 9 of the Law
“On the Prosecutor’s Office”, if it is necessary to
protect the rights and legitimate interests of minors,
the elderly, disabled people who cannot independently
defend their rights, the prosecutor has the right to go
to court [14].
In this case, the prosecutor has procedural rights and
obligations, in addition to the right to conclude an
agreement as a participant in the process.
The legislation of the Republic of Kazakhstan also
provides for the participation of the prosecutor in civil
proceedings, mainly in order to protect the interests of
the state. For example, Article 4 of the Law of the
Republic of Kazakhstan “On the Prosecutor’s Office”
defines the tasks of the Prosecutor’s Office, according
to which the Prosecutor’s Office performs the
following tasks within the framework established by
law:
1) Protection and restoration of the rights and
freedoms of man and citizen, the legitimate interests
of legal entities, society and the state;
2) Identification and elimination of violations of the
law, the causes and conditions that contribute to them,
as well as their consequences;
3) Coordination of the activities of law enforcement
and other state bodies to ensure their legality, law and
order and the fight against crime;
4) Other tasks established by the laws of the Republic
of Kazakhstan and documents of the President [15].
It is appropriate to note that a number of changes have
occurred in the legislative experience of Uzbekistan
regarding the participation of the prosecutor in civil
proceedings. In particular, as defined in Article 46 of
the former Civil Procedure Code of the Republic of
Uzbekistan (CPC), the prosecutor has the right to apply
to the court with a statement in defense of the rights
and legally protected interests of other persons, and
also has the right to participate from the beginning of
the proceedings initiated on the initiative other
persons. The participation of the prosecutor in the
proceedings of a civil case is mandatory in cases where
it is provided for by law or when the need for the
participation of the prosecutor in this case is
recognized by the court, as well as in cases initiated at
the request of the prosecutor [16]. However, in the
second part of Article 50 of the Code of Civil Procedure
of the Republic of Uzbekistan, approved by the Law of
the Republic of Uzbekistan No. 460 dated January 22,
2018, it is established that the participation of the
prosecutor in the proceedings of a civil case is
mandatory in cases where this is provided for by law or
when the need for the participation of a prosecutor in
this case is recognized by the court, as well as in cases
initiated at the request of the prosecutor [17].
However, the Law of the Republic of Uzbekistan dated
January 12, 2021 No. 661 “On amendments and
additions to the Civil Procedure Code of the Republic of
Uzbekistan in connection with the improvement of the
institute for the review of court decisions” amended
and supplemented Article 50 of the Code of Civil
Procedure of the Republic of Uzbekistan. According to
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which, it is established that the prosecutor has the
right to participate in the proceedings of a civil case
only in cases where this is provided for by law, as well
as in cases initiated at the request of the prosecutor.
The obligatory participation of the prosecutor in the
proceedings of a civil case is excluded in cases where
the court found it necessary for the participation of the
prosecutor in the case. It is also provided that the
prosecutor, on his own initiative, cannot participate in
the proceedings initiated at the request of other
persons [18].
Against the background of the reduction of the powers
of the prosecutor in civil cases, by order of the
Prosecutor General of the Republic of Uzbekistan
dated September 11, 2020 No. 222, an amendment was
made to order No. 124 “On
further improving the
effectiveness of the participation of the prosecutor in
the consideration of civil reinstatement at work [19].
However, Article 9 of the current Labor Code of the
Republic of Uzbekistan provides that supervision over
the precise and uniform enforcement of labor laws on
the territory of the Republic of Uzbekistan is carried
out by the Prosecutor General of the Republic of
Uzbekistan and prosecutors subordinate to him, and
Article 268 provides that the prosecutor has the right
to apply to the court with an application for
consideration of a labor dispute [20].
According to the Constitution of the Republic of
Uzbekistan [21] and the law “On the Prosecutor’s
Office” [22], it is established that the bodies of the
Prosecutor’s Office of the
Republic of Uzbekistan
exercise their powers, regardless of any state bodies,
public associations and officials, obeying only the law.
Bodies of prosecutors for the period of their powers
suspend membership in political parties and other
public associations pursuing political goals.
As one of the main activities of the prosecution
authorities, participation in the consideration of civil
cases in courts, protesting legal acts, and the main
tasks of prosecutors participating in this process, is to
achieve a lawful, justified and fair court decision
through the powers established by law, as well as
strengthening the rule of law, ensuring the rule of law,
the rights and freedoms of citizens, the effective
protection of legally protected interests of society and
the state [23].
Previously, the Code of Civil Procedure of the Republic
of Uzbekistan dated August 30, 1997, the powers of the
prosecutor to consider cases in civil proceedings were
ensured by:
Firstly, applying to the court with a statement in
defense of the rights and legally protected interests of
other persons;
Secondly, participation from the beginning of the
proceedings initiated at the initiative of other persons;
Thirdly, participation in cases where this is provided for
by law or when the need for the participation of a
prosecutor in a given case is recognized by the court
(Article 46 of the Code of Civil Procedure)
However, the Law of the Republic of Uzbekistan dated
January 12, 2021 No. 661 “On amendments and
additions to the Civil Procedure Code of the Republic of
Uzbekistan in connection with the improvement of the
institute for the review of judicial decisions” [24] to the
text of Article 50 of the Code of Civil Procedure, newly
adopted and entered into force on April 1, 2018,
changes and additions were made, which somewhat
reduced the participation of the prosecutor in civil
proceedings. In particular, the right of the prosecutor
to participate in the court session in all cases, the
procedure for the participation of the prosecutor in the
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case in cases where the court considered it necessary
for the participation of the prosecutor in this case was
canceled. Now it has been established that the
prosecutor has the right to participate in the
proceedings of a civil case only in cases provided for by
law, as well as in cases initiated at the request of the
prosecutor. It also provides that the prosecutor may
not, on his own initiative, participate in the
proceedings initiated on the basis of applications from
other persons.
Now, even if the court deems it necessary to involve
the prosecutor in the case, the ability and authority of
the judge to involve the prosecutor in the case has
been officially abolished by law. This also caused a
change in the forms of participation of the prosecutor
in the civil process.
Previously, i.e. before the adoption of the
aforementioned Law of the Republic of Uzbekistan No.
661 [25], the prosecutor participated in the civil process
in the following two forms:
1) Applying to the court with a statement in defense of
the rights and legally protected interests of other
persons;
2) Participation from the beginning of the proceedings
of the case, initiated at the initiative of other persons,
to express an opinion on the content of the case
(Article 50 of the Code of Civil Procedure).
Indeed, until the relevant amendments and additions
are made to Article 50 of the Code of Civil Procedure,
the second form of participation of the prosecutor in
the civil process, that is, the form of participation from
the beginning of the proceedings initiated at the
initiative of other person is canceled.
In this regard, the norm, which is now provided for by
Article 245 of the current Code of Civil Procedure under
the title “Opinion of the Prosecutor”, states that “the
prosecutor participating in the case expresses his
opinion on the merits of the dispute after judicial
debate, except for cases initiated on his application in
defense of the rights, freedoms and legally protected
interests of others” now does not work in practice and
this norm does not carry any
“burden”.
However, legislative experience, as well as proposals
and considerations put forward in the legal literature
of foreign countries, indicate that the forms of
participation of the prosecutor in trials are one of the
topical issues. There are different points of view on this
subject in the legal literature [26]. In particular, the
following are put forward as the main forms of
participation of the prosecutor in the process:
- Appeal to the court with a statement (claim);
- An introduction in order to give a conclusion to the
work [27].
As noted above, at present, the first form of
participation of the prosecutor in court, established in
the Code of Civil Procedure of our country, provides for
the form of his participation with the right to apply to
the court with a statement on the protection of the
violated rights, freedoms and legitimate interests of a
citizen, if the citizen is not able to personally defend his
rights, freedoms and legitimate interests in court for
health reasons, age or other reasons; - only in cases
stipulated by law. However, it should be noted that not
only in the procedural legislation, even in the by-laws,
it is not indicated in which cases the prosecutor files a
claim (petition) in a civil court. This shows how
important the issue is a detailed study of the
mechanisms for implementing the rule that “the
participation of the prosecutor in the proceedings of a
civil case is mandatory in cases where it is provided by
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law”, established in the second part of Article 50 of the
Code of Civil Procedure.
It should be noted here that the question arises as to
which law provides for the participation of the
prosecutor in the courts in the consideration of conflict
cases arising from legal relations in the sphere of labor.
Article 9 of the current Labor Code of the Republic of
Uzbekistan provides that supervision over the precise
and uniform enforcement of labor laws in the territory
of the Republic of Uzbekistan is carried out by the
Prosecutor General of the Republic of Uzbekistan and
prosecutors subordinate to him, and Article 268
provides that the prosecutor has the right to apply to
the court with an application for consideration labor
dispute [28].
However, the Labor Code of the Republic of
Uzbekistan, adopted in a new edition, does not contain
a clear rule regarding the implementation by the
Prosecutor General of the Republic of Uzbekistan and
prosecutors of the Republic of Uzbekistan subordinate
to him of supervision over the precise and uniform
implementation of labor laws in the territory of the
Republic of Uzbekistan. But in article 597 of the Labor
Code, the prosecutor is included in the list of bodies
that have the right to apply to the court with an
application to consider a labor dispute. However, if the
prosecutor does not file a statement of claim, the
question arises whether he has the right to participate
in the proceedings in court in a labor dispute initiated
on the basis of a filed statement of claim by an
employee, because Article 597 of the Labor Code
provides for the right of the prosecutor to apply to the
court with an application to consider a labor dispute.
Whereas in the second part of Article 50 of the Code of
Civil Procedure of the Republic of Uzbekistan, the rule
is fixed that the prosecutor cannot, on his own
initiative, participate in the proceedings initiated on
the basis of applications from other persons.
Therefore, in our opinion, in the second part of Article
50 of the Code of Civil Procedure of the Republic of
Uzbekistan, it is proposed to exclude from the
legislation the rule that the prosecutor cannot
participate on his own initiative in the proceedings
initiated at the request of other persons. After all, not
in any civil procedure legislation of the studied foreign
countries there is a norm limiting the participation of
the prosecutor in the civil process in such a way.
In addition, the legal literature also emphasizes that
participation in the courts of the prosecutor in labor
disputes, especially when considering disputes about
reinstatement, in order to issue an opinion, serves as
an additional protection of human rights and the rule
of law, the performance of the supervisory function of
the prosecutor [29].
Researchers and practitioners who in recent years
have been engaged in special research work on the
participation of the prosecutor in civil proceedings also
note that the participation of the prosecutor in civil
cases should be determined by the socio-political
significance of cases, the right of citizens to privacy and
the need to protect the legitimate interests of the
future generation, and proceed from the relevance,
complexity, social significance of the work and the
situation of law on the ground [30].
Taking into account the above-mentioned experience
of the legislation of foreign countries and the
arguments of legal scholars who highly appreciate the
role of the prosecutor in protecting the interests of the
state and society, it is necessary to expand the scope
of the prosecutor’s powers when considering cases of
labor disputes in civil courts at later stages.
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Before talking about the participation of the
prosecutor in the courts, in order to protect the labor
rights of citizens, it would be advisable to dwell
separately on the features of the organization of the
work of the prosecutor’s of
fice to protect the labor
rights of citizens in civil proceedings.
This feature is distinguished by the complexity of labor
relations and the legal regulation directly related to
them, the abundance and variety of violations
identified in the labor sphere, etc.
With the effective protection of the labor rights of
citizens by the prosecutor in court, obtaining reasoned
information, providing information about offenses,
violations of the law committed by the subjects of
labor relations is important.
Providing the prosecutor participating in the
consideration of labor disputes in court with
information on violations of the law committed in the
sphere of labor and other information on employment
includes the following main aspects:
First, it is necessary to organize the transfer of the flow
of information about violations of the law committed
in the sphere of labor to the prosecutor’s office. At this
stage, it is required to analyze the appeals received
from citizens to the prosecutor's office, as well as to
collect and systematize information about violations of
labor legislation and labor rights in it and submit it to
the prosecutors involved in the trial.
Secondly, on the basis of the work reviewed by public
organizations, supervisory authorities, the media,
audit materials and courts identified through the
control directions of the prosecutor’s office, it is
necessary to use the opportunity to obtain information
about violations of the law and other information
related to work in the sphere of labor.
At the same time, it should be noted that in recent
years the prosecutor’s office has been strengthening
cooperation with the media. After all, through the
media, it not only receives information about the state
of legality in the field of labor relations, but also
informs the general public about the results of its
activities in this area. This, in turn, serves to increase
public confidence in the prosecution authorities,
improve the legal culture in society, and carry out work
to prevent and suppress offenses.
The Prosecutor General of the Republic of Uzbekistan
N.T. Yuldashev correctly noted that now the system of
work with appeals in the prosecutor's office has been
radically improved, the activities of the Center for
Continuous Reception of Appeals in the Prosecutor
General’s Office have been established, and the
organization of on-site receptions has become a
permanent practice. Over the past 5 years, the
prosecutor’s office received 1 million 249 thousand
appeals, 1 million 187 thousand citizens were received
directly. The problems of 323,000 citizens were
resolved through field receptions in remote and hard-
to-reach areas. It was on the basis of appeals that the
violated rights of 183,000 citizens were restored, and
more than 330 billion soums of damage was recovered
in their favor [31].
It is also important to obtain the following information
related to conflict cases arising from labor relations
and which are in legal proceedings: information about
the number of cases in court, the plaintiff, the
defendant, the court decision and the entry into force
of the court decision.
CONCLUSION
The prosecutor is obliged to plan the activities of
citizens in this area in order to effectively protect their
labor rights in the courts. Consequently, the activities
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of the
prosecutor’s office should be built on a planned
basis. In the legal literature, opinions are put forward
that planning the activities of the prosecutor is
understood as the solution of the issue of the
sequence,
procedure
and
timing
of
the
implementation of complex or individual types of
work, taking into account existing opportunities [32].
In the practice of the prosecutor’s office, violations of
the labor rights of employees are often manifested in
the hiring of citizens, the termination of an
employment contract with employees, and also in the
absence of timely payment of wages. The most
common violation of labor legislation (70%) is related
to the violation of the procedure for remuneration.
According to statistics on the work carried out by the
pros
ecutor’s office to implement the legislation on
monetary security for wages, pensions, allowances
and scholarships (as of July 2022), with the
intervention of the prosecutor, 1,518 people in the
republic were provided with cash, and on the basis of
519 lawsuits filed to the court on this basis recovered in
cash payment of wages, pensions, allowances and
stipends [33].
At the same time, the following positive trends in the
activities of the prosecutor's office should be noted, in
particular,
systemic
supervision
over
the
implementation of labor legislation has been
established, special attention is paid to the work to
eliminate violations in this activity, the activities of
employment services to provide employment services
are under constant control, protection against
unemployment, recovery of unpaid wages to
employees, timely termination of other identified
violations of the law and, ultimately, timely and
effective protection of labor rights of employees.
The measures taken by the prosecutor’s office s
erve to
significantly improve the situation with ensuring the
rights of citizens to wages and reduce wage arrears in
organizations and institutions of various forms of
ownership. The assistance provided by prosecutors to
citizens in the protection of labor rights has been and
remains a quick, effective and affordable way to
protect violated rights. At the same time, it is worth
noting that, taking into account research papers,
scientific articles by legal scholars and practitioners, as
well as changes in the current legislation, it can be
concluded that the continuation of work on studying
the problems of protecting the labor rights of citizens
by a prosecutor in civil process is a priority.
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scholarship payments in cash for the half year
of 2022.
