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The judiciary
–
as a main guarantee of protection of the right of
ownership
Khaji-Murad ISAKOV
1
High School Judges with the Supreme Judicial Council of the Republic of Uzbekistan
ARTICLE INFO
ABSTRACT
Article history:
Received October 2021
Received in revised form
15 October 2021
Accepted 15 November 2021
Available online
25 December 2021
The right of ownership is recognized and protected by law in
the Republic of Uzbekistan. Generally recognized principles,
property rights, and freedom of contract are not strictly
recognized. Which presuppose equality, autonomy of will and
property independence of participants in civil law relations.
Arbitrary interference in private affairs is not allowed. The
freedom of ownership, use and disposal of property is
conditioned, including the ability to alienate one's property into
the ownership of other persons. Have their right to transfer
property rights to someone, while remaining the owner, as well
as their ownership rights, and the possibility of the right to use
and dispose of.
This article analyzes the concept and genesis of the origin of
property rights, and also substantiates the importance of
protecting this right by the judicial power of any state. The
author has studied the constitutional foundations, regulatory
and legal mechanisms for ensuring the protection of property
rights by the court. According to the results of the analysis,
relevant conclusions were drawn and proposals were developed.
2181-
1415/© 202
1 in Science LLC.
https://doi.org/10.47689/2181-1415-vol2-iss11/S-pp
This is an open access article under the Attribution 4.0 International
(CC BY 4.0) license (https://creativecommons.org/licenses/by/4.0/deed.ru)
Keywords:
human rights and freedoms,
property,
right of ownership,
judiciary,
independence of judges,
Civil Code of the Republic of
Uzbekistan,
Plenum of the Supreme
Court of the Republic of
Uzbekistan,
Constitution.
Sud hokimiyati mulk huquqini himoya qilishning asosiy kafolati
sifatida
АННОТАЦИЯ
Калит сўзлар:
inson huquq va erkinliklari,
mulk,
mulk huquqi,
O‘zbekiston Respublikasida mulk huquqi qonun bilan tartib
ga
solinib himoya qilinadi. Umum eʼtirof etilgan tamoyillar, mulk
huquqi, shartnoma erkinligi daxlsiz deb tan olinadi. Bu fuqarolik-
1
PhD in Law, High School Judges with the Supreme Judicial Council of the Republic of Uzbekistan. Tashkent,
Uzbekistan.
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sud hokimiyati,
sudyalarning mustaqilligi,
O'zbekiston
Respublikasining Fuqarolik
kodeksi,
O'zbekiston Respublikasi
Oliy sudi Plenumi,
Konstitutsiya
huquqiy munosabatlar ishtirokchilarining tengligi, irodasining
mustaqilligi va mulkiy mustaqilligini nazarda tutadi. Shaxsiy
ishlarga o‘zboshimchalik bilan aralashishga yo‘l qo‘yilmaydi.
Mulkga egalik qilish, undan foydalanish va uni tasarruf etish
erkinligi, shu jumladan o‘z mulkini boshqa shaxslarning mulkiga
o‘tkazish imkoniyati nazarda tutilgan. O‘z huquqiga ega bo‘lish,
mu
lk huquqini birovga o‘tkazish, mulkdor bo‘lib qolgan,
shuningdek, ularning egalik huquqi, foydalanish va tasarruf etish
huquqi.
Ushbu maqolada mulk huquqining kelib chiqishi tushunchasi
va genezisi tahlil qilinadi va har qanday davlatning sud organlari
tomonidan
ushbu
huquqni
himoya
qilish
muhimligi
asoslantirilgan.
Muallif
konstitutsiyaviy
asoslarni,
sud
tomonidan mulk huquqlarini himoya qilishni taʼminlashning
normativ-
huquqiy mexanizmlarini o‘rgangan.
Tahlil natijalari
asosida tegishli xulosalar chiqarilib, takliflar ishlab chiqildi.
Судебная власть –
гарантия обеспечения и защиты права
собственности
АННОТАЦИЯ
Ключевые слова:
права и свободы человека,
собственность,
право собственности,
судебная власть,
независимость судей,
Гражданский кодекс
Республики Узбекистан,
Пленум Верховного суда
Республики Узбекистан,
Конституция.
Право
собственности,
в
Республике
Узбекистан
признается и охраняется Законом. Неприкоснительно
признаются,
общепризнанные
принципы,
право
собственности, свободы договора. Которые, предполагают
равенство,
автономию
воли
и
имущественную
самостоятельность
участников
гражданско
-
правовых
отношений. Не допускается, произвольное вмешательство в
частные
дела.
Обусловливается,
свобода
владения,
пользования и распоряжения имуществом, включая
возможность отчуждать свое имущество в собственность
другим лицам. Иметь, свое право, передавать кому
-
либо
имущественные права, оставаясь собственником, а также их
права владения, и возможности права пользования и
распоряжения.
В данной статье проанализированы понятие и генезис
происхождения права собственности, также
обоснована,
важность защиты этого права судебной властью любого
государства. Автором изучены конституционные основы,
нормативно
-
правовые механизмы обеспечения защиты
судом права собственности. По результатам анализа
сделаны
соответствующие
выводы
и
разработаны
предложения.
I. INTRODUCTION
The problem of protection of fundamental human rights and freedoms is one of the
universal ones
–
these are values, which are subject to priority protection in all spheres of
public and state life. In the general scale of humanitarian values, human rights occupy a
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central place in the same level as a value of a person himself. In any democratic system, the
rights and freedoms of citizens, as well as their legal duties, constitute the most important
social, political and legal institution, which serves as an indicator of maturity of a society.
One of basic human rights is the right to own, use and dispose of property. Property
is untouchable and sacred. This postulate, which previously caused a lot of controversies,
is now universally recognized in the heyday of product-money relations.
It should be noted that the right of ownership is quite vulnerable, both on the part
of participants in civil law relations, and also on the part of public authorities and
administration. A crucial role in ensuring adequate and effective protection of property
rights is exercised by courts. The entire judicial system shall ensure the correct
enforcement of legal acts governing property relations. And the task of any state, including
the Republic of Uzbekistan, is to create an effective and modern judicial system, which is
able to solve problems of ensuring the rights and freedoms of citizens.
Therefore, reforming the judicial system is one of the most important directions of
state policy. This issue has always been and continues to receive special attention. Thus,
the Action Strategy for five priority areas of development of the Republic of Uzbekistan in
2017-2021, which is one of the main directions of further development, provides for the
modernization of the judicial system [1].
II. METHODOLOGY
In solving the tasks set in this article, general scientific and special methods of
scientific knowledge were used: system, specific-sociological, comparative-legal,
analytical, quantitative analysis (content analysis), logical-legal, etc.
The analysis of the norms of the legislation of the Republic of Uzbekistan and a
number of foreign countries, some international acts, doctrinal works, scientific articles in
the field of criminal law and criminology was used as an empirical basis.
Together, all these methods made it possible to ensure the reliability and validity of
the research results in a scientific article to a certain extent
III. Results of the study of determinants
As, the President of the Republic of Uzbekistan, Shavkat Mirziyoyev, noted in his
festive congratulations on Constitution Day: “Deep reforms are being carried out in
accordance with an important constitutional provision
–
ensuring human rights and
interests in all spheres, especially in judicial and legal”
[2].
Indeed, an independent and effective judiciary is a guarantee for ensuring and
protecting human rights. This is the most important condition for effective compliance
with the law.
On December 7, 2020, the President signed the Decree “On Measures to ensure the
true independence of judges and improve the efficiency of Anti-corruption actions in the
judicial system”
[3]. The document defined main directions of state policy in these areas.
In the context of the implementation of the state
’
s policy of improving the activities
of courts in the field of protecting rights and interests of private and legal persons, special
importance is attached to judicial protection of property rights.
Art. 19 of the Constitution of the Republic of Uzbekistan provides: “the rights and
freedoms of citizens enshrined in the Constitution are inviolable, and no one can be
arbitrarily deprive
d of it without a court order” [4]
. Additionally, Art. 10 of the Civil Code
of the Republic of Uzbekistan defines: “Protection of civil rights is carried out in accordance
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with the jurisdiction of cases established by procedural legislation or an agreement, a court
or an arbitration” [5]
. This provision applies to the protection of ownership as well. The
main and most effective methods of protection are those, which provide for judicial
protection in response to a claim submitted to courts on the matter of violation of
ownership rights.
The protection of ownership title is carried out on the basis of civil law norms that:
establish the ownership of material goods to the subjects of civil legal relations; determine
the degree of their property isolation; provide owners with the conditions for the exercise
of their rights within certain limits; establish unfavorable consequences for persons, who
violated the rights of owners. Protection of property rights is tied with state regulation of
the distribution of property between subjects of civil law, as well as with state permission
to have and dispose of property within certain limits.
An example of the distinct attention of the judiciary to the protection of property
rights is seen in a number of Resolutions of the Plenum of the Supreme Economic Court
and the Supreme Court of the Republic. The most significant is the Resolution of the
Plenum of the Supreme Economic Court of the Republic of Uzbekistan (as amended on May
19, 2018 No. 17) “On some issues of the applic
ation of legislation by economic courts when
considering cases on the recognition of ownership”, which provides:
“When considering cases on the matter of recognition of property rights, the courts
must strictly follow the Constitution of the Republic of Uzbekistan, the Civil Code of the
Republic of Uzbekistan (hereinafter referred to as the CC), the Economic Procedural Code
of the Republic of Uzbekistan (hereinafter referred to as the EPC), the Law of the Republic
of Uzbekistan “On Property in the Republic of Uzbekistan”, as well as other regulatory legal
acts” [6]
.
According to Article 54 of the Constitution and Article 164 of the Civil Code, the right
of ownership is the right of a person to own, use and dispose of the property belonging to
him at his own discretion and in his own interests, and also demand the elimination of any
violations of his property rights.
In accordance with Article 182 of the Civil Code, the grounds for acquiring
ownership rights are: labor activity; entrepreneurial and other economic activities related
to the use of property, including the creation, increment, acquisition of property through
transactions; privatization of state property; inheritance; acquisitive prescription; other
grounds, not contradicting to the legislation.
In the second paragraph of the first part of Article 11 of the Civil Code, it is provided
that the protection of civil rights is carried out by recognition of that right. According to
paragraph 6 of the first part of Article 26 of the EPC, economic courts resolve disputes over
the recognition of property rights.
The Plenum clarifies the procedural provisions:
“It is necessary to draw the attention of the economic courts to the fact that the cases
on the recognition of ownership and on the establishment of facts of legal significance are
procedurally different from each other.
If there is a dispute in cases on the recognition of ownership, they are considered on
the basis of the claim and with presence of the parties (the plaintiff and the defendant), as
well as, if necessary, third parties are involved.
Cases on the establishment of facts of legal significance are initiated on the basis of
applications for the establishment, change and termination of the rights of citizens and
organizations in the economic sphere. Since there is no dispute in these cases, they are
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considered with the participation of the applicant, and if necessary, with involvement of
interested parties. In such cases, there is no respondent.
If a claim for the recognition of ownership is submitted to the court, but its content
implies the requirement to establish a fact of legal significance, then the court refuses to
satisfy such a claim".
Analysis of the main provisions of the Resolution of the Plenum of the Supreme
Economic Court of the Republic of Uzbekistan and similar Resolutions of the Plenums of
the Supreme Court of the Republic of Uzbekistan demonstrate clearly that, ultimately,
judicial practice have become the cause of so-called absolute force for the recognition of
ownership: a person who did not participate in the consideration of the case for the
recognition of ownership cannot bring a claim on invalidation of a registered property
right without first challenging the court decision. The basis for refusal to satisfy claims for
recognition of ownership in such cases is provided by Article 15 of the EPC RUz, which
establishes that judicial acts are binding on public authorities, self-government bodies,
other bodies, organizations, officials and citizens, and subject to execution throughout the
territory of the Republic of Uzbekistan.
The resulting law enforcement model puts the law in actual and legal dependence
on the decisions made by the court: the rule of law is valid only if the court makes the
appropriate decision. This is followed by the law being implemented through the adoption
of a court decision, which launches the enforcement mechanism. This situation is partly
the result of the absolutization of a court decision as a main instrument in the law
enforcement mechanism, when a court act is considered as the main legal fact of
substantive law, on the basis of which subjective rights and obligations are terminated.
The priority is given to a decision of courts, which essentially determine the life of the rule
of law and its implementation; and, interestingly, the force of the law is placed under the
condition of the validity of the court decision.
In addition, the role of a court decision in the mechanism for the implementation of
subjective civil law for protection is worth pointing out. If we consider the action of the
mechanism for the protection of rights completed only after the real and actual elimination
of violations of the law, then, the restoration of a violated subjective civil right by positive
decision of a court is not the indicator of full elimination. The indicator is proper execution
of that court decision.
However, here, the main emphasis should be made not only on the point of
execution of the court decision, but on real execution of the requirement of a legislation
expressed in the court decision.
It should be born in mind that the absolutization of a court decision in the
recognition of property rights can be used by unscrupulous participants in the process
through the use of various schemes of abuse of procedural rights. K.I. Sklovsky describes a
situation in which two persons, who do not have any real rights to the allegedly disputed
property, start a trial, the result of which is a court decision in favor of one of the parties
[7]. For a real owner of the property, the implementation of such a scheme can lead to
extremely unfavorable consequences. In the described situation, the court decision
becomes a legal fact, on the basis of which the plaintiff in bad faith becomes the title holder,
abusing the norms of Chapter 15 of the Civil Code of the Republic of Uzbekistan, containing
an exhaustive list of grounds for acquiring ownership rights.
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The Constitution and laws of Uzbekistan determine that the issue of restriction or
deprivation of property rights is resolved in the manner prescribed by laws, that is, the
regulatory legal acts of the Oliy Majlis of the Republic of Uzbekistan.
Thus, the Constitution of the Republic of Uzbekistan states:
“None of the provisions of this
Constitution can be interpreted to the detriment of
the rights and interests of the Republic of Uzbekistan. No law or other normative legal act
can contradict the norms and principles of the Constitution” (Article 16).
“The rights and freedoms of citizens
enshrined in the Constitution and laws are
inviolable, and no one has the right to deprive or restrict them without a court decision”
(Article 19).
“The basis of the economy of Uzbekistan, aimed at the development of market
relations, is property in its various forms. The state guarantees freedom of economic
activity, entrepreneurship and labor taking into account the priority of consumer rights,
equality and legal protection of all forms of ownership” (Article 53).
Article 166 of the Civil Code unambiguous
ly and clearly defines: “Property is
inviolable and protected by the Law.” Seizure of property from the owner, as well as
limitation of his powers is allowed only in cases stipulated by legislative acts”.
The Housing Code of the Republic of Uzbekistan in Art. 11 provides:
“Residential buildings, apartments that are in private ownership cannot be seized,
the owner cannot be deprived of the right of ownership of a residential building,
apartment, except in cases established by law. Forced seizure of residential premises is
allowed only on the basis of a court decision in cases and in the manner prescribed by law”
[8].
Also, the Law “On Property in the Republic of Uzbekistan” defines:
“Private property, along with other forms of property, is inviolable and pro
tected by
the state. The owner may be deprived of it only in cases and in the manner prescribed by
the law”. (Part 2 of Article 7)
[9].
The Law “On Protection of Private Property and Guarantees of Owners’ Rights”, in
article 2 provides: “The owner may be d
eprived of his property only in cases and in the
manner prescribed by the law”.
Article 17 adds: “Property in private ownership is not subject to nationalization,
confiscation and requisition, except in cases stipulated by law.” This provision is followed
by Art. 23 of the Law “On guarantees of freedom of entrepreneurial activity”:
“The seizure of property, the termination of other property rights of a business
entity, as well as their limitation are not allowed, with the exception of cases provided by
law”
[10].
IV. DISCUSSION OF CONCLUSIONS AND PROPOSALS
Analysis of the above-mentioned Laws demonstrate clearly that property rights
cannot be limited and no one can be deprived of property except by a court decision.
(Article 19 of the Constitution) Decisions made by other bodies will be contrary to the
Constitution and Laws, which means that the div initiating the seizure of property must
approach a court in any case.
The state takes vigorous measures to prevent violations in the field of ownership
protection. In 2018-2020, a number of important regulations were adopted, which were
aimed at strengthening the protection of ownership rights. This is how the Law of the
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Republic of Uzbekistan “On Amendments and additions to some legislative
acts of the
Republic of Uzbekistan, in connection with further strengthening of guarantees of the
rights and legitimate interests of owners”, dated December 24, 2020 No.
656, introduced
amendments to the Land Code and to the Law of the Republic of Uzbekis
tan “On the
Protection of Private Property and Guarantees of Owners’ Rights” in order to improve the
inviolability of private property [11].
The powers to seize land for state and public needs, as well as the implementation
of investment projects, were transferred to the Jokargy Kenes of the Republic of
Karakalpakstan and the Kengashes of people’s deputies of the regions and the city of
Tashkent.
Additionally, amendments have been made to the Law of the Republic of Uzbekistan
“
On local bodies of state authority
”
and to Articles 5, 6, 7, 36-38 of the Land Code, providing
for the exclusion of the right to seize land from khokims of districts, cities, regions [12].
In addition, the right of ownership or the right to permanent or temporary use of all
or part of a land, as well as to lease a land, can be terminated by the decision of the khokims
of districts, cities, regions or by the decision of the Cabinet of Ministers of the Republic of
Uzbekistan only in the following cases:
1) voluntary refusal from the land;
2) expiration of the period for which the land was provided;
3) liquidation of a legal entity;
4) termination of labor relations in connection with which the land was provided,
unless otherwise defined by law.
In other cases, the right of ownership or the right of permanent or temporary use of
the entire land or its part, as well as lease of the land, can be terminated only by a court
decision on the basis of a claim by the div that provided that land.
However, before the adoption of this act, there were cases when a subject deprived
of the right of ownership had to refer to a court after a state div (khokimiyat, etc.) made
a decision to seize property in illegal matter outside the competences given to it by the
Constitution and the above-mentioned laws. This was a consequence of the fact that
indication in a number of laws and regulations that decisions on limiting or deprivation of
ownership can be adopted by state bodies on the basis of legislation or acts of legislation,
in fact, transferred exclusive competence to the executive branch of government.
In accordance with the order of the President of the Republic of Uzbekistan from
August 3, 2019 No. R-5491, the seizure of land within the framework of the effective
implementation of state programs and investment projects is allowed only in compliance
with the established rules aimed at ensuring and protecting the rights of persons whose
land is being seized. These documents contain a list of grounds and the procedure for the
seizure of a land for particular purposes [13].
In this regard, additions were introduced to the Article 19 of the Law “On protection
of private property and guarantees of the owners’ rights”, providing that a decision of the
Council of Ministers of the Republic of Karakalpakstan, khokimiyats of regions and the city
of Tashkent or a district (city) on the demolition of immovable property located on the
seized land is made only if there is a positive conclusion from the justice authorities. An
agreement on compensation for losses in connection with the seizure of a land, concluded
between the initiator of the seizure of the land and the owner of the immovable property
located on the seized land shall be duly notarized. The decision on the demolition of the
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immovable property is allowed only after a compensation of losses to the owner of an
immovable property located on the seized land was fully made, including lost profits and
other expenses established in the agreement, and in the event of a dispute
–
in a court
decision.
Demolition of real estate objects owned by individuals and legal entities of a seized
land is allowed only after residential and non-residential buildings, production and other
buildings and structures are fully emptied. Additionally, full reimbursement of the market
value of immovable property located on the seized land shall be made including expenses
related to relocation, including the temporary receipt of another immovable property, lost
profits of individuals and legal entities, and other expenses and losses stipulated by law.
Losses caused to individuals and legal entities as a result of the issuance of an illegal
administrative act by a state div (official) are subject to compensation by the state, in the
first place, at the expense of extra-budgetary funds of the relevant authorities with
subsequent recovery from the guilty person in a recourse manner.
It is important to note that property can be forcibly seized for various reasons, for
example, for public needs or as part of the owner's repayment of his contractual, tort or
administrative obligations (these are the so-called default obligations).
The fact that encroachment on someone else's property is not fair is axiomatic. The
principle of prohibiting encroachment on someone else's property should be ensured,
including when an object of private property is seized for public needs. National
instruments and mechanisms should be brought in line with international standards
The implementation of the radical economic reform being carried out in the
Republic of Uzbekistan, aimed at creating a market economy in the country, fundamentally
new economic relations, is impossible without ensuring effective protection of property
rights. This goal, to a greater or lesser extent, is devoted to the norms of practically all
branches of legislation, and, first of all, to civil law. Civil law protects property rights in
several ways, a significant place among which is the property-legal methods of protecting
property rights. However, despite the well-known tradition of this institution, the system
of rules of this institution that has been worked out for centuries, it nevertheless harbors
many problems of both theoretical and purely practical nature.
It is clear that all the issues considered in this paper require their resolution at the
level of legislation. Most of them are of more scientific rather than practical interest.
However, no less important in law enforcement is their doctrinal interpretation, which
makes it possible, in the absence of legislative regulation of a specific issue, to use the ways
of resolving it developed by science as an argumentation basis.
REFERENCES:
1.
Strategy of action of the Republic of Uzbekistan in five priority directions in
2017-2021 years.
Appendix to Presidential Decree from 7 of February 2017, №PD–
4947.
2.
Festive Congratulations of President Sh. Mirziyoev on Constitution day on 7th of
December 2020.
3.
Presidential Decree “On Measures to ensure the true independence of judges and
improve the efficiency of Anti-
corruption actions in the judicial system” from December 7,
2020.
4.
Constitution of the Republic of Uzbekistan
5.
Civil Code of the Republic of Uzbekistan
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6.
Resolution of the Plenum of the Supreme Economic Court of the Republic of
Uzbekistan (as amended on May 19, 2018 No. 17) “On some issues of the application of
legislation by economic courts when considering cases on the recognition of ownership”
7.
Sklovskiy K.I. “Ob usloviyah predyavleniya iska o priznanii prava sobstvennosti”
// Vestnik, 2008, №1, page 38
.
8.
The Housing Code of the Republic of Uzbekistan.
9.
Law “On Property in the Republic of Uzbekistan”
.
10.
Law “On Protection of Private Property and Guarantees of Owners’ Rights”
.
11.
Law of the Republic of Uzbekistan “On Amendments and additions to some
legislative acts of the Republic of Uzbekistan, in connection with further strengthening of
guarantees of the rights and legitimate interests of owners” from
December 24, 2020.
12.
Law of the Republic of Uzbekistan “On the Protection of Private Property and
Guarantees of Owners’ Rights”
.
13.
Law of the Republic of Uzbekistan “On local bodies of state authority”
.
14.
Order of the President of the Republic of Uzbekistan from August 3, 2019.
No. R-5491.
