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IMPROVEMENT OF NATIONAL LEGISLATION ON THEPROTECTION
OF THE RIGHTS OF THE CHILD
Alieva Makhliyo Gafur kizi Master's
student of UWED G-mail:
makhliyoaliyeva@gmail.com
Annotation.
In this article discusses the issues of how to improve
the rights of the child, in particular the problems and causes, conclusions
and suggestions for improving the activities of the Commissioner for the
Rights of the Child.
Keywords:
protection of children's rights; commissioner for
Children's Rights; institute for Family Rights; civil procedural law.
Currently, there is no doubt that the child is an independent bearer
of rights and a special subject of law. However, it was only in the 20th
century that the world community realized the vulnerability of children and
came to the conclusion that there was a need for special mechanisms to
protect their rights. In the Declaration of the Rights of the Child, adopted by
the United Nations General Assembly on November 20,
1959, it is
indicated that a minor, under any conditions, must be among people who
must first be protected and helped in every possible way [1].
The accession of the Republic of Uzbekistan in 1992 (entered into
force on July 29, 1994) to the Convention on the Rights of the Child and its
Optional Protocols on the sale of children, child prostitution and child
pornography, as well as the participation of children in armed conflicts,
contributed to the formation of State policy in the field of protection of
children's rights, which is a consistently implemented activity of State local
authorities and public authorities to create an effective mechanism of legal
relations for the protection of the rights of the child [11].
To date, Uzbekistan has made significant progress in protecting the
rights of children. It should be noted that the legal status of the child is
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reflected in the Constitution of the Republic of Uzbekistan. In particular,
Article 65 establishes that «... children are equal before the law regardless
of their parents' origin and civil status. Motherhood and childhood are
protected by the state. » [3].
As a result of the implementation of the basic principles and
provisions of the Convention on the Rights of the Child into national
legislation, on January 7, 2007, the Law «On Guarantees of the Rights of
the Child» was adopted and entered into force in the Republic of
Uzbekistan, aimed at strengthening the legal status of the child in the
Republic of Uzbekistan. This law is the first special law in Uzbekistan in the
field of child rights protection [5].
As international and national experience shows, if the
Commissioner for the Rights of the Child is embedded in the structure of
the office of the Commissioner for Human Rights, the issues of protecting
the rights and legitimate interests of children are not a priority in the work
of such an institution, which directly contradicts Article 3 of the UN
Convention on the Rights of the Child [2]. The problems of protecting the
rights and interests of children are «dissolved» in numerous problems of
violation of the rights of adult citizens who have great opportunities to
protect their rights and interests. It is quite obvious that in such a structure
there will not be enough time or effort to protect the rights and interests of
children, to conduct independent inspections of children's institutions, to
develop and support legislative proposals, legal education of legal
representatives of children, as well as specialists working with children or
in their interests, the initiation of new programs in the interests of children
and the improvement of existing legal support mechanisms for children. In
accordance with the UN Convention on the Rights of the Child, a child is a
special independent subject of law, having special rights and interests that
differ from adults. This also necessitates special mechanisms for the
protection of these rights. The Commissioner for Children's Rights is just
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such a special mechanism for protecting children's rights.
The Committee on the Rights of the Child points out that the
obligation of States under article 4 of the UN Convention on the Rights of
the Child is «to take all appropriate legislative, administrative and other
measures to implement the rights stipulated in this Convention», which
includes the creation of an independent national human rights institute to
promote and monitor the implementation of children's rights. This institution
is often created in the form of a Commissioner for the Rights of the Child
[11].
Based on the analysis, we can say that at the national level we have
achieved significant progress in ensuring the rights and protection of the
legitimate interests of the child. A clear example of this can be an agency
at the institutional level, an independent div (position) The Ombudsman
for the Rights of the Child [13, 35].
It should be noted that according to the Presidential Decree of
9.08.2021 «On measures to further improve the system of guaranteeing
the rights of the child», the post of Deputy Commissioner of the Oliy Majlis
for the Rights of the Child was abolished and anindependent institute of the
Commissioner of the Oliy Majlis for the Rights of the Child was established,
which is elected by the Chambers of the Oliy Majlis on the proposal of the
President for five years [6].
Although today there is a certain regulatory framework of the
Republic of Uzbekistan, by the Resolution of the Kengash of the Senate of
the Oliy Majlis of the Republic of Uzbekistan «On issues of reliable
protection of the rights of women and children and violence committed
against them» dated 05.05.2022, № 345-IV, a working group is trying to
improve the regulatory framework of the Republic of Uzbekistan regarding
the protection of rights children from violence [8].
As the President of the Republic of Uzbekistan Sh.M. Mirziyoyev put
it, if we do not educate children, check their behavior daily, give education,
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teach professions, provide them with employment, it will be difficult to
protect them from harmful influences [12].
It is important to note that the Development Strategy of the New
Uzbekistan for 2022-2026, approved by Presidential Decree of 28.01.2022,
provides for additional measures to ensure the rights of the child,
strengthen its social protection. The Strategy includes specific measures to
fully cover children with various forms of education (Chapter V) and other
aspects of protecting children's rights, and as paragraph 14 is aimed at
forming a juvenile justice system and codifying legislation on children's
rights [7].
Also, on April 11, 2023, the President of the Republic of Uzbekistan
signed amendments to the legislation on the protection of the rights and
freedoms of women and children. According to this amendment, a register
of persons who are prohibited from working with children will appear. The
Law of the Republic of Uzbekistan «On guarantees of the Rights of the
Child» is supplemented by the provision that convicted persons for certain
types of crimes, regardless of the repayment or removal of a criminal
record, the application of an act of amnesty or pardon against them, are
prohibited from working in educational, children's health, sports and
creative organizations and engaging in activities involving direct work with
children [10].
Currently, the draft law «On the Commissioner of the Oliy Majlis of
the Republic of Uzbekistan for the Rights of the Child (Children's
Ombudsman)» fixing the parliamentary model of the Commissioner is
under consideration in the Legislative Chamber of the Oliy Majlis of the
Republic of Uzbekistan, the National Center of the Republic of Uzbekistan
for Human Rights (initiative project) and more than 40 state organizations
and NNOs participated in its preparation.
It is obvious that the normal work of the Commissioner is impossible
without the legislative consolidation of guarantees that ensure his activities.
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There are four groups of guarantees, the consolidation of which is
necessary.
1. Legal guarantees.
1. Inviolability.
By analogy with the Commissioner for Human
Rights, the Commissioner for the Rights of the Child should not, without the
consent of the Oliy Majlis, be brought to criminal or administrative
responsibility imposed in court, detained, arrested, searched, except in
cases of detention at the scene of a crime, as well as subjected to a
personal search, except in cases where it is provided by law to ensure the
safety of others.
2. Independence.
It is necessary to establish a provision that the
Commissioner, in the exercise of his powers, is not subordinate to any
State bodies and officials. In his activities, the Commissioner is obliged to
be guided by the Constitution of the Republic of Uzbekistan [3], generally
recognized principles and norms of international law, international treaties
of the Republic of Uzbekistan, including the UN Convention on the Rights
of the Child [2], the Law of the Republic of Uzbekistan «On Guarantees of
the Rights of the Child» [5] and, in general, the legislation of the Republic
of Uzbekistan.
3. Witness immunity.
It is necessary to amend the Criminal
Procedure Code of the Republic of Uzbekistan, the Civil Procedure Code
of the Republic of Uzbekistan, the Economic Procedure Code of the
Republic of Uzbekistan, fixing the right of the Commissioner to refuse to
give testimony in a civil or criminal case about the circumstances that
became known to him in connection with the performance of his duties.
4. Availability of legal liability.
It is necessary to establish legal
responsibility for obstructing the legitimate activities of the Commissioner
for the Rights of the Child [9, 15]. The Code of the Republic of Uzbekistan
«On Administrative Responsibility» introduced article 197
4
, which
establishes administrative responsibility for obstructing the lawful activities
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of the Commissioner of the Oliy Majlis of the Republic of Uzbekistan for
Human Rights (Ombudsman) [4].
This article states that «officials fail to fulfill their duties to the
Commissioner of the Oliy Majlis of the Republic of Uzbekistan for Human
Rights (the Ombudsman), create obstacles to his work, provide him with
deliberately false information, as well as officials leaving appeals,
conclusions, submissions, petitions without consideration or violating
without good reason the terms of their consideration or intentional
submission according to them, obviously unreliable information entails the
imposition of a fine on officials from 3 to 7 basic calculated values» [4].
It seems to us that in order to respond promptly to the facts of
obstructing the activities of the Commissioner, it is necessary to assign the
function of drawing up a protocol on an administrative offense to the
Commissioner for Children's Rights himself. In addition, Article 197
4
of the
Code of the Republic of Uzbekistan «On Administrative Responsibility»
should be supplemented with responsibility for non-compliance by an
official with the established deadlines for providing information (documents,
materials, responses to appeals) to the Commissioner.
At the same time, it would be advisable to endow the authorized
people with the status of a state div that has its own apparatus that
ensures its activities. A gap in the legal status of the Commissioner for the
Rights of the Child is the limited opportunity for the Commissioner for the
Rights of the Child to participate in court proceedings that relate to the rights
of children.
Currently, the Ombudsman cannot act as an independent party to
the case or a representative of the interests of a minor, and also does not
have the right to appeal against unjustified court decisions in cassation. It
seems necessary to consolidate in the civil procedural legislation the right
of the Regional Commissioner for the Rights of the Child to participate in
court proceedings for the consideration of 74 civil cases, including cases
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arising from public legal relations. The reform of civil procedural legislation
in this part will ensure effective protection of the rights and interests of the
child, their observance by state bodies, local self-government bodies and
officials. Today, some imbalance can be noted in the activities of the
ombudsmen. They actively interact with government agencies, but do not
work enough with the public. It is necessary to constantly monitor the
opinion of the population about the work of the Ombudsman and the wishes
to improve his activities. It is necessary to work out the methodology of
using mediation procedures to resolve family disputes.
Their clear normative consolidation, I think, would eliminate the
existing gap, balance the rights and duties of the Commissioner for the
Rights of the Child in the Republic of Uzbekistan, increase the effectiveness
of his work. Within the framework of the current legislation, there are all
possibilities to give the Commissioner for the Rights of the Child broad
powers. And the need for the existence of such a position is recognized
almost everywhere.
The Institution of the Commissioner for Children's Rights, it seems
to us, should be redesigned into the Institute for Family Rights, otherwise
this agency will not respond to Uzbekistan's current request for a sovereign
family policy.
Based on the above,
the following proposals
can be made to
improve the legislation on the protection of the rights of the child:
1. Although the Decree of the President of the Republic of
Uzbekistan «On measures to further improve the system of ensuring
guarantees of the rights of the child» provides the Commissioner for the
Rights of the Child with a fairly wide range of tasks to perform the duties
assigned to him, but the legislation does not provide for any specific duties
of the Commissioner for the Rights of the Child. Therefore, it is proposed
to fix in the legislation the obligation to notify the applicant of the results of
the consideration of the complaint; the obligation, in case of finding a
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violation of the rights of the child, to take measures within the competence;
the obligation to provide a state div, a local self-government div or an
official whose decisions or actions (inaction) are being appealed, the
opportunity to give their explanations, motivate their position, the obligation
to prepare an annual report on the state of protection of children's rights in
the Republic of Uzbekistan.
2. It is proposed to define the legal boundary of the inspection
carried out by the Commissioner for the Rights of the Child. It should be
understood as a set of control measures carried out by the Commissioner
for Children's Rights independently or jointly with authorized state bodies
and officials in relation to executive authorities, state authorities of the
Republic of Uzbekistan, as well as officials to assess the compliance of
their activities or actions (inaction) with the requirements of generally
recognized principles and norms of international law, the Constitution The
Republic of Uzbekistan, international treaties of the Republic of Uzbekistan,
constitutional laws, laws, issued in accordance with them by other
normative legal acts of the Republic of Uzbekistan in the field of rights,
freedoms and legitimate interests of children, as well as their guarantees.
3. It can also be concluded that in practice and at the legislative
level, it would be necessary to include not only children, but also pregnant
women, women with children in special educational institutions and
educational colonies among the subjects whose protection is provided by
the Commissioner for the Rights of the Child.
As is known, the current legislation does not regulate the authority
of the Commissioner for the Rights of the Child to interact with the
competent authorities of foreign states in the established field of activity
and to carry out information exchange with them. Meanwhile, due to the
increasing cases of violations of the rights of children adopted by foreign
citizens, it is necessary to consolidate powers in this area at the regulatory
level by making appropriate amendments to the legislation of the Republic
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of Uzbekistan.
As we can see, in Uzbekistan, issues of promotion, observance and
protection of children's rights are considered as one of the priorities of state
policy. The country has formed its own model of systematic and phased
implementation of international human rights standards into national
legislation and law enforcement practice. However, the scale and severity
of existing problems in the field of ensuring children's rights, emerging new
challenges, the interests of the country's future and its security urgently
require continued improvement of national legislation on the protection of
children's rights.
List of literature:
1. Declaration of the Rights of the Child: adopted by the United
Nations General Assembly Resolution № 1386 (XIV) on 20 November
1959. // URL:
https://www.ombudsmankk.ru/childrenrights/declaration/
2. Convention on the Rights of the Child: adopted by the United
Nations General Assembly Resolution № 44/25 on 20 November 1989.//
URL:
https://www.un.org/ru/about-us/convention-on-the-rights-of-the-child
3. ^ститу^я PесnубликиУзбекистaн: Пpинятa 8 декaбpя 1992 год
a ha XXI сессииВеpхoвнoгo Сoветa PУздвенaдцaтoгo ocaNea (сизм. uo
сoстoяниюнa 2021 г.) - Т.: «Ўзбекисгон», 2021.
4. Кодекс Республики Узбекистан «Об административной
ответственности». 01.04.1995 // URL:
https://lex.uz/docs/97661
5. Закон Республики Узбекистан «О гарантиях прав ребенка»,
№ ЗРУ-139 от 07.01.2008 г. // URL:
https://lex. uz/docs/1297318
6. Указ Президента Республики Узбекистан “О мерах по
дальнейшему совершенствованию системы обеспечения гарантий
прав ребенка”, №
УП-6275
от
09.08.2021г.
// URL:
440
https://lex. uz/docs/5570494
7. Указ Президента Республики Узбекистан «О стратегии
развития нового Узбекистана на 2022 — 2026 годы», № УП-60 от
28.01.2022 г. // URL:
https://lex. uz/docs/5841077
8. Постановление Кенгаша Сената ОлийМажлиса Республики
Узбекистан «О вопросах по надежной защите прав женщин и детей и
насилия, совершаемых в отношении них» № ПК-345-IV от 05.05.2022
г. // URL:
https ://lex. uz/ru/docs/6020280
9. Ермолаева С.В. Институт Уполномоченного по правам
ребенка
в
субъектах
Российской
Федерации.
Выпускная
квалификационная работа (магистерская диссертация). Тольятти
2021- 98 с.
10. Как новый закон усилит защиту женщин и детей //
URL:.https://www.gazeta.uz/ru/2023/04/12/women-and-
children/?utm
source=yxnews&utm medium=desktop
11. Комментарий к Закону Республики Узбекистан «О
гарантиях прав ребенка» А.Х. Саидов и др. Национальный центр
Республики Узбекистан по правам человека. - Т: «Vektor-Press», 2009
- 272 с.
12. Мирзиёев Ш.М Если мы не будем заниматьсявоспитанием
детей,
сложно
будет
защитить
их
отвредныхвоздействий.
ДокладПрезидентаРУз.
Дата:
04.07.2018.
//
Источник:
https://kun. uz/ru/64908831
13. Тиркашева Г.М. Международно-правоваязащита детей
отнасилия и некоторыеаспекты их обеспечения в национально-
правовойпрактикеУзбекистана. Магистерская диссертация. Ташкент -
2022. -79 с.
14. кызы МУСТАФАЕВА, Наджиба Ильгар. "К 70-ЛЕТИЮ
ВСЕОБЩЕЙ ДЕКЛАРАЦИИ ПРАВ ЧЕЛОВЕКА." Московский журнал
441
международного права 106.1 (2018): 35-43.
15. Исраилова, Зарина. "Конституция–основа свободной и
благополучной жизни народа." in Library 1.1 (2023): 46-56.
