84TSUL LEGAL
REPORT
THE LAW JOURNAL
E- ISSN: 2181-1024
ISSUE №1 ^
SEPTEMBER 2020
Head of the Editorial Board
Hakimov Rahim Rasuljonovich - Rector of the Tashkent State University of Law, Doctor of Law, Professor
Members of the Editorial Board
Salaev Nodirbek Saparbayevich - Deputy rector on scientific work and innovation of Tashkent State University of Law, Doctor of Law, Professor
Rustambekov Islambek Rustambekovich - Deputy rector on academic affairs of Tashkent State University of Law, Doctor of Law, Professor
Nematov Jasur Aminjonovich - Professor of the Tashkent branch of the Russian University of Economics named after GV Plekhanov
Latipov Samir Ildusovich - Director of the Center for Legal Initiatives and Innovations of the Tashkent State University of Law
Ramazanova Nargiza Abdurashidovna - Head of the Department of Commercialization of Scientific and Innovative works of the Center for Legal Initiatives and Innovations of the Tashkent State University of Law, Doctor of Philosophy in Law
Kurbanov Maruf Mamadaminovich - Head of Criminalists and Forensics Examination Department of Tashkent State University of Law, Doctor of Philosophy in Law
Narziev Otabek Sadiyevich - Head of International Private Law Department of Tashkent State University of Law, Doctor of Philosophy in Law
Khodzhaev Shakhzhakhon Akmalzhon ugli - Head of Intellectual Property Department of Tashkent State University of Law, Doctor of Philosophy in Law
Uzakova Gozal Sharipovna - Head of Environmental Law Department of Tashkent State University of Law, Doctor of Philosophy in Law
Musaev Bekzod Tursunboyevich - Head of the Constitutional Law Department of Tashkent State University of Law, Doctor of Philosophy in Law
Gafurova Nozimakhon Eldarovna - Head of the Department of International Law and Human Rights of the Tashkent State University of Law, Doctor of Law;
Nematov Jurabek Nematulloyevich - Associate Professor of Administrative and Financial Law Department of Tashkent State University of Law, Doctor of Law
Pirmatov Otabek Shavkatovich - Senior lecturer of Civil Procedure and Economic Procedural Law Department of Tashkent State University of Law, Doctor of Philosophy in Law
Yakubova Iroda Baxramovna - Associate Professor of Intellectual Property Department, of Tashkent State University of Law, Doctor of Philosophy in Law
Abzalova Khurshida Mirziyatovna - Associate Professor of Department of Criminal Law, Criminology and Anti-corruption, Doctor of Law
Akhmedova Guzalkhon Utkurovna - Associate Professor of Criminalists and Forensics Examination Department of Tashkent State University of Law, Doctor of Law
Ibragimova Mukhlisa Paridunovna - Head of the Department of Strategic Development and Entry into International Rankings
ISSN: 2181-1024. Certificate: No. 1342 Contacts
Editorial office address: Tashkent, st. Sayilgoh, 35. Index 100047.
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E-mail: [email protected]
© 2020. TSUL - Tashkent State University of Law. All rights reserved.
TSUL LEGAL REPORT
TLR
CONTENTS INTRODUCTION
Khakimov Rahim. Legal education:current situation, challenges and
prospects innovative development........................................................ 4
12.00.01 - THEORY AND HISTORY OF STATE AND LAW. HISTORY OF LAW
DOCTRINES
Nazarov Otabek. Place and role of leadership in legal practice and system of
law sciences..................................................................................... 14
12.00.02-CONSTITUTIONAL LAW. ADMINISTRATIVE LAW. FINANCE AND
CUSTOMS LAW
Kosimov Botirjon. Threats to judicial independence: reflections on the US
experience...................................................................................... 20
Khayrulina Asal. Legal aspects of the protection of women's rights within UN
system........................................................................................... 30
Umarova Iroda. Transparency is an important principle of the electronic
government operations in the republic of Uzbekistan.................................. 38
Bobokulov Azizbek. Gender equality in Uzbekistan: problems and solutions... 43 Olimova Zarina. Evolving role of local government in supporting tourism
development in Uzbekistan.................................................................. 49
Ubaydullaev Saydullo. The development of gender equality in Uzbekistan
and the gender equality reforms of last years............................................. 57
12.00. 03-CIVIL LAW. EMPLOYING LAW. FAMILY RIGHT. INTERNATIONAL
PRIVATE LAW
Abduvaliev Maksudjon. Invalidity of agreements in civil law - an analysis of
the experience of Uzbekistan and Japan.................................................. 65
Eshchanova Dauletbike. Actual problems of legislation of the development of
internet insurance in Uzbekistan............................................................. 69
12.00.05-LABOUR LAW. LAW OF SOCIAL MAINTENANCE Khojabekov Muftulla. Employment rights and privileges of persons with
disabilities........................................................................................ 73
12.00.08-CRIMINAL LAW, OFFENCE PREVENTION. CRIMINOLOGY. CRIMINAL-
EXECUTIVE LAW
Kurbanov Marufjon. Criminal-legal aspects of regulation of business activity:
the example of Uzbekistan................................................................... 80
Uralov Sarbon. Some issues of qualification of the rape crime..................... 92
Rakhimova Ulzana. Cybercrime subject and limits of proof........................ 100
Topildieva Dilrabo. Circumstances to be determined when investigating
intentional killing................................................................................ 111
Boymuratov Khasan. Legal regulation of the use of electronic documents in
criminal proceedings.......................................................................... 116
12.00.10-INTERNATIONAL LAW Miruktamova Feruza. Restorative model of juvenile justice as an alternative
to criminal penalties: international standards and national legislation............ 122
Khamdamova Firuza. The impact of digital technologies on human rights..... 134
Rasulov Jurabek. The concept of "forced labor": analysis of national
legislation and international legal standards.............................................. 146
12.00.12 - CORRUPTION ISSUES Arslonov Doniyor. Corruption - the core of main problems.......................... 153
2020 — "Year of science, education and digital economy"
LEGAL EDUCATION: current situation, challenges and prospects innovative development
Our current interviewee is Rector of the Tashkent State University of Law, Doctor of law Rahim Rasuljonovich Khakimov.
legal education in Uzbekistan? What can you say about its position in the development of the country?
- The legal education as a part of the education system in our country does not significantly differ from the situation in other directions. I mean, the point is, it lags behind today's requirements. From kindergarten to university level, legal education needs to be modernized. This is, above all, directly linked to the fundamentally updated teaching methods and curricula, the creation of modern textbooks, the introduction of information technologies in education, close links with practice, and active international integration. Moreover, higher legal education today is not sufficient to meet the
- Rahim Rasuljonovich, the Address of our honored President sent to the Parliament includes such significant ideas that if we have set a goal to transform Uzbekistan into a developed country, we would be able to achieve this only by implementing accelerated
reformations, relying on science, enlightenment and innovations. To achieve these, we, first of all, need to train personnel of a new formation, who are initiators of amendments, who have a strategic vision, deep knowledge and high qualification. That is why all stages of education -from preschool to higher education - are being reformed.
Could you tell me, how do you assess the state of current
expectations of our youth, the needs of society and the State.
Regarding the second part of your question. The experience of such leading countries as Japan, South Korea and Germany shows that they have made progress not only through science and innovation, but also through the implementation of rights and law in society. For this, in turn, there must be qualified legal personnel, and citizens must have a sufficient level of legal knowledge and culture. In this sense, legal education is an issue equally relevant to the development of all aspects of society and the state.
- The state program "Year of development of science, education and digital economy" sets a task to develop a project of presidential decree aimed at improving legal science and education. What changes are expected in this direction?
- At the present day, Tashkent State University of Law, the Ministry of Justice together with interested ministries and departments have prepared a project of the relevant document. This document envisages a number of measures aimed at fundamental reformation of the system of general, specialized secondary and higher legal education.
First and foremost, these changes are related to the renewal of the educational process and curricula based on the standards of advanced foreign law schools. We are taking steps to transfer the study process at a law school to the European Credit Transfer and Accumulation System, which is applied in the European Union and other countries. This will make it possible to bring the teaching process, the disciplines taught and their content in line with world standards, as well as to introduce free international academic exchange of students and teaching staff.
Another important change is related to the training of modern pedagogical personnel. Modern education is impossible with backward thinking teachers who do not know about progressive knowledge. Today the percentage of professors and lecturers who graduated from the leading foreign universities does not even reach 4% at the University of Law. On average, only 10-15 teachers are upgrading their skills in foreign countries. These numbers are obviously not enough.
Therefore, we are planning to establish an annual goal-oriented training of 20-30 talented bachelor graduates at the master's stage,
doctoral studies of the world's leading universities, as well as internships and advanced training of 40-50 professors and teachers on a systematic basis by the expense of the university. As a result, we intend to increase the number of qualified teachers educated in advanced foreign countries to 70-80% within 34 years. I am convinced that this situation will significantly change the quality of legal education in a positive way.
In addition, provision is made for the complete elimination of paper workflow in the educational process, the implementation of the "Electronic University" program (E-University), which automates the management of the learning process, implementing the "University 3.0" conception aimed at commercializing the results of education, science and innovation.
- Could you give more information about the project of "Electronic University"? The relevant Presidential Decree provides for the introduction of distance learning in three universities, in particular the Tashkent State University of Law, starting from the 2020/2021 academic year. How will this task be implemented?
- This project is a vivid reflection of innovation in the educational process. The project involves
digitalization of all educational processes. In other words, processes such as student attendance, scheduling, maintaining records and other documents, conducting examinations and announcing their results, assessing teachers' performance and creating thier ranks, providing references to students and providing other services will be fully transformed into electronic format. Each student will have a private cabinet on the platform of "Electronic University". In this way, the student will be able to get all the information about their studies, including information related to the schedule of classes, educational materials, attendance, debt on subjects and contracts, as well as communicate with their teachers. Professors and teachers will also have similar cabinets. This system reduces the human factor in education, ensures openness and transparency and saves time and money. Nowadays, our university with the financial support of the World Bank is actively working on the implementation of this platform from the 2020/2021 academic year.
Distance learning is a requirement of time. In the age of information technology the demand for it is increasing. It is estimated that by 2025 the number of people receiving distance education in the world will be twice as high as those studying directly at universities.
The advantage of distance learning is that the student can acquire knowledge at a time convenient for him or her, without being isolated from his or her family, place of residence, occupation or work. Moreover, there will be no need for classrooms, dormitories, which require considerable resources for training, and therefore education costs will be significantly reduced.
In addition, this form of education will make it possible to increase higher education enrolment among young people. Distance learning will be introduced at our University, first of all, at retraining courses for those who have higher legal education, and in the future - at master's and bachelor's degree courses.
- You can focus on the prospects for the development of legal science.
- High-quality legal education is practically impossible to guarantee without science. In this sense, the objective is to speed up scientific works in the field of jurisprudence, to bring them to the international level, to encourage the faculty to publish scientific articles in internationally indexed journals.
This will allow us to more widely represent the national legal science in the international arena, to place our
university in the world's leading rankings (QS World University Rankings, Times Higher Education), to study more deeply the foreign experience and, eventually, to achieve high quality education, efficiency of legislation and law enforcement practice.
Thus, if in September last year the index of scientific potential of Tashkent State Law University was 32%, now as a result of activation of defense of scientific works this index has reached 36%. Within the next 5 years, by supporting scientific-research activities, the scientific potential will be increased to at least 70%. For this, 46 professor-teachers, more than 100 doctoral candidates and independent researchers are actively researching at the university.
As a result of the introduction of the mechanism that stimulates the publication of works in international scientific publications, over the past 34 months, the teaching staff of our university has published 31 articles in publications included in the Scopus, ScienceDirect and Web of Science databases, by the end of the year we are planning to increase this number to 200 publications.
Moreover, taking into account the increasingly active introduction of information technologies and systems into jurisprudence, it is planned to organize a legal technological
laboratory (Legal Tech), a center of legislative initiatives for the introduction of the results of scientific research into practice, the creation of a system of forecasting in the field of legal research "Foresight prediction", through the center of innovation it is planned to establish close cooperation between the university departments and users of legal services, as well as commercialization of the results of researches.
- Rahim Rasuljonovich, you said about the necessity of eleveting legal science and education to the international level. It is obvious that there are not enough international lawyers in our country today. What measures are being planned to tackle this problem?
Indeed, today the country has very few qualified lawyers working at the international level, especially in international trade and arbitration. Under current conditions of active investment policy in our country, the demand for such personnel is particularly high.
As our economy continues to grow, such demand will only increase. Therefore, we have taken practical steps to train lawyers in this direction. The point is that from the beginning of the new academic year the Faculty of International Law and Comparative Law will be established
at the University. This faculty, on the basis of an extensive comparative study of international law, national and foreign legislation, will train highly qualified personnel with the ability to conduct activities at the international level. In the process of study, the students will participate in internships at international law firms.
At the same time, the faculty will establish scientific research centers to study the law of developed countries. Currently, the University effectively runs the Center for Study of Japanese Law. This year, an agreement has been reached with the University of Regensburg in Germany to establish a Center for the Study of German Law.
In the following years, we will organize similar centers for studying English, French and Chinese law. These centers, in cooperation with foreign partners, will train qualified lawyers who will perfectly study the legislation of foreign countries in the languages of these countries.
In addition, this year we will launch the Master Degree in International Arbitration Law and Dispute Resolution and in Advocacy. In training specialists in international arbitration, we will cooperate with a reputable international organization, namely the Hague Conference on Private International Law. We have signed an agreement on cooperation
in this sphere with this international organization. Our university has been recognized as the 17th university in the world that signed a cooperation agreement with this prestigious international
organization. All of these are extremely important in the training of world-class lawyers.
At the same time, we are in negotiation with the leading universities of Great Britain, France, South Korea, Russia and Belarus on the introduction of joint programs (double degree) for the training of bachelors and masters that meet modern requirements.
On the basis of more than 30 cooperation agreements signed with leading universities, scientific centers and research institutes of Europe, Asia, America, international scientific and educational funds, the work on academic exchange of students and teachers, joint research and internships is actively being carried out. Moreover, it is very important for our university to join international and European associations of universities, as well as law schools.
— Starting from this year, ten higher educational institutions of our country have been transferred to self-financing system. One of them is TSUL. What opportunities would the
introduction of this system provide?
The introduction of the self-financing system has opened the door for our university to a wide range of opportunities for academic and financial independence. A number of issues that were previously addressed within the frame of government and ministries are now being addressed by universities independently. Thus, through the introduction of this system, the right was granted to determine the size of allowances and other types of material incentives for employees, materially stimulate talented personnel, as well as students belonging to strata in need of social protection, to spend money on their own, and use the outsourcing opportunities in education. It also granted rights to determine the parameters of admission of students on a tuition basis in coordination with relevant ministries and departments, to open new directions and specialties of Bachelor and Master Degrees based on self-financing needs, to determine the cost of education on a tuition basis. These opportunities will undoubtedly serve the effective functioning of higher education institutions in a market economy, improve the quality of education and create a competitive environment in this sphere.
However, it should be noted that the introduction of a self-financing system is being carried out as an
experiment. Therefore, we confront such important tasks as a clear definition of the legal status of higher educational institutions that have switched to a system of self-financing, their differences from budgetary organizations, and the creation of a powerful legislative base in this sphere.
- You are talking about a competitive environment in education. Has such an environment been created in higher legal education today? To what extent are the needs of young people for higher legal education being met?
- As in any sphere, in the sphere of legal education as well, the higher the competition, the more progress will be achieved. When it comes to higher legal education, there is a certain degree of competition. Today, besides TSUL, legal personnel with higher education are being trained by the University of World Economy and Diplomacy, Westminster International University in Tashkent, the Academy of the Ministry of Internal Affairs, the Customs Institute, the Military Technical Institute of National Guard and Karakalpak State University.
However, this situation cannot be considered adequate for two reasons. Firstly, many of these institutions of higher legal education
are located in the capital, which in turn limits the opportunities for youth in the regions. Secondly, in our country with a population of 34 million people, only about a thousand lawyers with higher education are trained every year. This figure in any way does not meet the real needs in the labor market.
For example, Uzbekistan has one of the lowest numbers of lawyers per 100,000 people in the world. For comparison: in Uzbekistan, there are 12 lawyers per 100 thousand people, in Israel - 737, in the European Union - an average of 162, in Russia - 50, in Kazakhstan - 22 lawyers. When it comes to the number of judges, in Uzbekistan there is one judge per 23 thousand people, in France - 11 thousand, in the United States - 9 thousand people, and in Germany - 4 thousand people.
In this regard, the State Program for this year is aimed to open law faculties in the higher educational institutions of the regions that have the relevant potential. It will also serve the development of a competitive environment in the industry, the emergence of new law schools, and an increase in the number and quality of legal personnel.
Moreover, this year, in order to increase the level of coverage of the youth in higher legal education at Tashkent State University of Law, it is planned to significantly increase
admission parameters compared to last year through the introduction of distance learning and joint educational programs.
- Today, practical work is being carried out in our country to turn higher education into a system of corruption-free education. What steps are being taken in this direction by the university you are supervising?
- Modernization of higher education and training of highly qualified personnel are impossible without elimination of corruption in this sphere. Today at the University all measures are taken to uncompromisingly combat corruption, to form a team consisting of honest, conscientious professors-teachers and employees, to eliminate various bureaucratic factors between them and students, to ensure impartiality, fairness and transparency in evaluating students' knowledge.
In particular, the University's Anti-Corruption Program has been prepared. The activities of the AntiCorruption Commission, which are constantly aimed at the prevention of corruption, its identification, study of its causes and conditions, as well as the development of concrete proposals in this sphere, are being improved. It involves students,
parents, and representatives of the general public.
The University has also prepared Ethical Rules for Teachers and Employees, Regulations on Conflict of Interest, Procedure for Notification of Cases of Requests to Commit Corruption Offenses. Since the effect of fight against corruption will be achieved only if professors, teachers, employees and students have knowledge of what kind of behavior generates corruption and what measures should be taken in case of inclination to commit offences.
In order to create a corruption-free environment, a system of continuous communication between the University administration and students has been created, and students evaluate the activities of professors and teachers during certain periods, for example, at the end of each semester. The Electronic University (E-University) project also focuses on reducing the human factor in the learning process. This will in many ways contribute to the elimination of corruption-causing factors.
Furthermore, from the 2020/2021 academic year, we are planning to accept for the Master Degree through tests, which will be carried out by the State Testing Center. This would also serve to
prevent corruption risks in this direction.
- Rahim Rasuljonovich, the improvement of legal education is impossible to imagine in separation from secondary specialized, vocational education. What are the plans in this direction?
- Today, 14 law colleges of the Ministry of Justice are functioning in the Republic of Karakalpakstan, Tashkent city and the provinces. They train lawyers with secondary special education in the field of public services, notary, advocacy, personnel issues, agricultural sector and executive production.
Currently, measures are being taken to align the curricula of law technicum with the university's programs, create new textbooks for them, improve the skills of teachers of technicum at the University, and create an integrated and interconnected system "technicum-university".
In order to provide law technicums with qualified pedagogical personnel possessing a high level of knowledge and professional training, meeting modern requirements, it is planned to provide specialized training of pedagogical personnel for law technicums in the Master's department of the University. At the
same time, it is offered to accept employees who have worked in law schools for 3 years on a preferential basis to the University's master's program, with the condition that they work at law technicum after graduation for at least 3-5 years.
In order to organize professional legal education in accordance with modern requirements, to train qualified, creative and independently thinking staff, from the 2020/2021 academic year in law technicums it is planned to organize the educational process on the basis of credit-module system, and create faculties on the basis of joint programs with leading foreign educational institutions -partners.
Taking into account that graduates of the academic lyceum under the university may continue their studies at the university in the future, the educational process of the lyceum is also being reviewed. For this purpose, the university is entrusted with the task of coordinating the educational process at the lyceum and developing curricula and programs. In an effort to introduce international standards into the educational process, it is also planned to use joint educational programs in academic lyceum.
Besides, in order to introduce digital technologies in secondary
vocational education, measures are being taken to implement the "Electronic Law Technicum" and "Electronic Academic Lyceum" projects, similar to the "Electronic University" program implemented at the university.
As a result of the work in progress, the educational process of law technicums, academic lyceum and university will be closely connected, and the functioning of an integral system for training qualified legal personnel on the basis of international requirements will be ensured.
- What are the qualities that you think a lawyer should possess?
- Lawyer is a highly respected and very responsible profession. By contrast to other professions, the activity of these specialists is always connected with people, runs in the process of mutual interrelations with a wide category of population. Therefore, a lawyer must first and foremost be fair, humane, honest and truthful. A lawyer must have a high level of knowledge, a sense of responsibility and a wide outlook.
Taking into consideration the role and importance of jurisprudence in ensuring justice, law and rule of law in the life of society, our great
ancestors, in particular Burhoniddin Marginoni, Alisher Navoi, paid special attention to this profession. In particular, Alisher Navoi in his work "Nazmul javohir" gives the following verse:
Qolg'on kishi kasbi ilmidin zahmat aro,
Fiqh o'rgansun, sa'y ila mehnat
aro.
Ilm ichra sharaf fiqhda bil nisbat aro,
Kim sarvar erur faqih bu ummat
aro.
Through this verse, our great ancestor recommends the study of law not only to lawyers, but also to all, and notes that through this people achieve perfection.
At the same time, a modern lawyer must have an excellent knowledge of foreign languages, be able to use information technologies, as well as have a good understanding of human psychology.
As mentioned in the Address of the President to the Oliy Majlis, modern knowledge, enlightenment and high culture, along with other professions, are equally necessary for lawyers.
- Rahim Rasuljonovich, thank you for your interesting and informative conversation.
12.00.01 - Theory and history of state and law. History of law
doctrines
PLACE AND ROLE OF LEADERSHIP IN LEGAL PRACTICE AND
SYSTEM OF LAW SCIENCES
Nazarov Otabek Gulomjonovich,
student of Tashkent State University of Law _E-mail: otabek.nazarov. [email protected]
A R T I C L E I N F O
A B S T R A C T
Keywords:
leadership,
legal
leadership, legal
psychology, the fight against organized crime.
The results of the comprehensive reforms implemented in our country in recent years are also evident in the field of jurisprudence. Changes in the national legal system of the country require further improvement of the process of training lawyers. Today, we all know that the formation and development of leadership skills and abilities in future lawyers is of paramount importance. The article analyzes the leadership characteristics of lawyers as one of the subjects in the field of legal sciences, such as criminology, criminalistics, legal psychology. The importance of leadership in combating and preventing crime has been analyzed with experience and practical examples gained in a number of areas, including the fight against economic crime and the fight against organized crime.
The article also draws on scientific and theoretical conclusions, scientific and practical suggestions and recommendations based on the results of the analysis of legal leadership._
Leadership is a comprehensive and complex concept that has historical roots. Even today this concept and others psychological concepts within its framework are still in the spotlight
humanity. In ancient times, many people dreamed of becoming a leader and worked tirelessly to become a leader. Of course, the results of such efforts have not
always been positive. We can explain this situation the fact that the process of reaching the level of leadership is very difficult and complex.
"Leadership literally means leadership that is unique human ability. However, in our opinion, it is less appropriate to describe leadership as a unified leadership skill. This can be seen as the pinnacle of human development.
How do leadership qualities arise, develop, and take shape? All these questions need to be answered in our own spirituality. Because a sense of leadership arises, develops and ultimately is formed in the spirituality of each person"[1].
We all know that legal sciences are closely related. To these include disciplines such as criminal law, criminal procedural law, criminal executive law, criminology, forensics and legal psychology. Undoubtedly the legal psychology is central to them. Because legal psychology, like the theory of state and law, is essentially a scientific the basis for all of the above legal disciplines.
Since the concept of leadership is associated with the human psyche, it is one of the objects of study in general psychology and one of the most
important concepts in their subject area. Psychology studies leadership as a separate direction of the discipline. Therefore, modern psychologists write a number of works in the field of leadership psychology and strategic leadership and contribute to the transformation of these areas into almost independent areas.
Today, the study of leadership psychology is becoming more and more popular in developed countries. Strategic Leadership tutors published and are recommended for practical use by students in various fields and professionals working in various fields. All this achievements of world psychologists.
In this case, what is the meaning of the concept of leadership for lawyers? Should whether this concept can be studied in legal sciences or not? Will receive the national legal system of our country benefits from the fact that in the process of training legal personnel to use legal leadership lawyers in the educational process?
Of course, leadership qualities are also important for lawyers. In general, neither one industry or direction cannot be represented without personnel without leadership potential. In particular, jurisprudence, like all industries, is
acutely needs leading specialist leaders. Therefore, for the development of leadership skills of future lawyers, that is, law students, along with several legal disciplines and, if possible, development a separate module for students "Leadership of Lawyers", in our opinion, the case more expedient.
Unfortunately, in recent years, our country has not paid enough attention to the formation and development of the leadership potential of legal frames. Despite the fact that it was known that in the activities law enforcement agencies, in particular in the field of investigation and criminal investigation department, there is a lack of knowledgeable, qualified and highly humane leaders, no higher educational institution in the country prepared lawyer-leaders. No steps were taken for training legal leaders in educational institutions. It is clear that this created conditions for the occurrence of some undesirable phenomena in legal practice.
It should be noted that this situation could not last long. Naturally, the democratic legal society that we are building would require a change in this situation. Reforms begin to bring fruit. Program of the 2018/2019 academic year for first-year students of Tashkent State University of Law at
present time includes the module "Personal development", which is widely used in foreign countries. This module (English: Personal development) made a good impression among students and was included in the list modules for first-year students in the program for the next 2019/2020 academic year in connection with the passage of the relevant requirement. By in our opinion, the main reason for this is that most the topics covered in the module were about leadership skills, and namely lessons on leadership formation and development aroused students positive emotions. However, this module only covers some of the urgently needed topics of legal leadership and does not fully meets our requirements.
The term legal (lawyers) leadership has not clear definitions. Both legally and psychologically. Since in this the field is so little research, even for the CIS (Russian: СНГ) countries, this is completely new direction. In practice, it is important for lawyers to have leadership potential. In the first years of independence, lawyers of our country faced many serious problems, especially with leadership issues. Our people, living on the basis of socialist property for decades and economy, set himself the goal of building an economic
TSUL Legal Report
system, based on market relations.
Entrepreneurship and
privatization state property was held extensively. It was during this process, it became clear that the entrepreneurs of our country were not yet ready to conduct business on the principles of a market economy at the time. This resulted in a sharp increase in economic crime in the country. It's no secret what economic and financial crimes are qualified, experienced professionals well versed in economic principles. To prevent this type of crime, lawyer-economists must have leadership skills. Assume that criminals are uneducated, lack of leadership skills and do not know the laws market economy is illogical. Today, many economic crimes remain unsolved. In our opinion, one of the main reasons for this is that most lawyers do not are fully aware of economic systems, and lawyers do not have leadership potential.
The organized crime situation was even more serious in 1990s. At the time, law enforcement officers were a serious fight against several organized criminal groups and "Leaders" of criminal organizations. You can learn more about this fight from the book by M.Musaev "Problems of the fight against the formation of a criminal organizations ". Based on the analysis of the data
E-ISSN: 2181-1024
presented in the book, it can be said that investigators, prosecutors and other employees law enforcement agencies involved in the fight against the formation a criminal organization with the qualities of legal leadership, working together defeated the leaders of criminal groups and gangs, in particular, thieves in law. We believe that this rich experience should be mastered and improved by future lawyers.
Currently leading
criminologists in leading countries classify the leaders of organized crime (criminal groupings) as follows:
1. Inspirators. They can inspire team members and provide ideological leadership.
2. Leaders-organizers. Leaders of this category of criminal groups differ in that they organize crimes with the participation of members of their groups.
3. Leaders of the mixed type. Leaders of this type of criminal group reflect the qualities of leaders in both of the above categories. They are very are active in crime and can coordinate the actions of others cooperating criminal groups.
4. Leaders of the most dangerous type. They not only organize crime at a high level, but also actively involved in the organization and the formation of
Volume 1, Issue 1 (2020)
new criminal groups.
Leaders in this classification have nearly all of the following personal quality: be able to quickly navigate and make decisions in complex situations;
enterprise; sociability; initiative, resourcefulness; good mental abilities and volitional qualities; the ability to keep your word;
decisiveness in actions; physical strength;
professional criminal
experience;
awareness of internal and external rules and requirements criminal communities;
the ability to ensure the secrecy of the trained and committed crimes, etc.
Without leadership qualities, the lawyers themselves will not be able to fight organized crime. Even if they do, they will not get hold of victory in it. Because in order to expose and defeat the leaders who are headed by criminal organizations, we lawyers need to have All of the above qualities, first of all, we ourselves.
An example of this is the work of investigators. According to procedural legislation, investigators head operational investigation teams (SOG). The group also includes several employees Ministry
of Internal Affairs, criminalist-experts and criminalist-cinematographers. The investigator is obliged complete investigation, manage and coordinate joint efforts team members. In such a situation, the investigator, of course, should be in able to demonstrate leadership potential and be a role model for all other members of the group.
Unfortunately, not all law enforcement officers conscientious and true to their duties and professions. This, in its turn, creates various difficulties for lawyers who fulfill their duties with criteria of honesty, purity and fairness. Although this the situation shows how harmful and dangerous signs of corruption are for legal practice, this also means that the legal (lawyers) leadership is of great theoretical and practical importance to us.
Therefore, in our opinion, in cases of combat and positional warfare only lawyers with leadership qualities can expose crimes and successfully fight criminals.
From a scientific and theoretical point of view, the term "legal leadership" must be clearly defined. Although this term is essentially an integral part of legal psychology, he did not receive enough and adequate attention from experts. Criminology in criminological description of each
type of crime pays special attention to the offender (criminal personality) and the identity of the offender. These two legal categories are directly related to the concept of leadership. However authors of criminology textbooks do not pay much attention legal leadership. In textbooks and e-books on criminalistic science, several times the leadership qualities of the criminal are mentioned. This can be explained the fact that in the process of solving crimes there are problems in overcoming obstacles arising from the leadership qualities inherent in criminals. We believe this is an inevitable situation. One of the most effective solutions to combat and
prevent crime is the use of practicing lawyers with leadership skills.
In conclusion, it should be noted that legal (lawyers) leadership is one of the most important areas of legal practice and should take their place in the system of legal sciences. We believe that leadership lawyers should be recognized as an integral part of the work of the management legal community, and the formation and further development leadership potential must be a decent job. Also it is advisable to create a module "Leadership of Lawyers", the program of which consists mainly of literature on leadership psychology, strategic leadership.
REFERENCES:
1. Nazarov O. Liderlikning inson ruhiyati bilan bog'liqligi. "O'zbekistonda o'tkazilayotgan yoshlarga oid davlat siyosatining maqsadi va mohiyati" Respublika ilmiy-amaliy konferensiya materiallari to'plami. 2019-yil 30-aprel. - T.: TDYU, 2019 - 168-169 betlar.
2. Шурухнов Н.Г. Криминалистика: определения, схемы, таблицы, диаграммы, рекомендации. Уч. пособие для студентов юрид. вузов - М.:Эксмо, 2008. - 352 с.
3. Васильев В.Л. Юридическая психология. Учебник для вузов. 6-изд. - СПб.: Питер, 2009. - 608 с.
12.00.02 - Constitutional law. Administrative law. Finance and
customs law.
THREATS TO JUDICIAL INDEPENDENCE: REFLECTIONS ON THE US
EXPERIENCE
Kosimov Botirjon Ma'rufjon o'g'li
Senior Lecturer at Constitutional Law Department of Tashkent State University of Law E-mail: [email protected]
A R T I C L E I N F O
A B S T R A C T
Keywords:
judicial independence, dependent judiciary, Supreme Court, Senate, President, court packing, judicial compensation, career judges, judicial election.
Judicial independence is of importance to maintain the Rule of Law, and it is a foundation for achieving justice in any society. However, judicial independence is threatened in a variety of ways. This article reflects on the United States experiences related to the threats to judicial independence.
INTRODUCTION
The United States Constitution is constructed the way that three branches of government functions separately and equally within their arranged powers, but based on checks and balances. Ideas of separation of powers and checks and balances are embodied in the US Constitution for not only preventing accumulation of all
government powers in the same government branch and preventing any branch being too powerful, but also for ensuring judicial independence
In addition, the constitutional architects tried to safeguard judicial independence against different encroachments by such means as lifetime tenure and undiminished salary. However, if we consider that
those who work for the government are also humans, we may conclude that officials are likely to violate the constitutional rules safeguarding judicial independence.
Threats from the Congress -the federal parliament to judicial independence takes the first place in the governmental sector. The judicial branch is connected with the Congress on jurisdiction and budget and relates to the Senate on conformation. The Congress keeps federal judges in a line via the impeachment. These are often described as checks on the judicial branch. Nevertheless, the Congress is said possibly not to execute its checks over the judiciary faithfully and properly. Further, the US President as a political figure is likely to pose a danger upon the judicial independence. Public criticism and judicial elections in the states also put judicial independence at risk. The main body of the article will look at the mentioned threats in more depth.
The aim of this paper is to reflect on the US experiences related to the threats to judicial independence and to gain insights into how the US judiciary are exposed to threats by the other branches of the government and various factors.
The research data-gathering methods such as historical analysis,
documentary analysis and a case study have been used to reach the aim.
MAIN BODY
The first Chief Justice of the US Supreme Court of John Marshal once said, "The greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people, was an ignorant, a corrupt, or a dependent Judiciary" [1]. However, a judge never becomes dependent since some factors may bring a judge to dependence.
Professor Gerald N. Rosenberg specifies that "...there are ten types of proposals that have been made to limit the power of the Court or demonstrate congressional displeasure. They include: (1) using the Senate's confirmation power to select certain types of judges; (2) enacting constitutional amendments to reverse decisions or change Court structure or procedure; (3) impeachment; (4) withdrawing Court jurisdiction over certain subjects; (5) altering the selection and removal process; (6) requiring extraordinary majorities for declarations of unconstitutionality; (7) allowing appeal from the Supreme Court to a more "representative" tribunal; (8) removing the power of judicial review; (9) slashing the budget; (10) altering the size of the Court" [2].
All federal judges are appointed by the President of the USA with the consent of the Senate. The Senate has been scrutinizing judicial nominees since the beginning. Historically, the Senate's questions were restricted to the professional qualification of nominees and occasionally their general judicial philosophy. Presidential judicial nominees started being invited by the Senate Judiciary Committee in 1930s and the testimony before the Senate became obligatory in 1955. Until this point, questions about judicial positions on real legal issues were not asked from nominees during judicial hearings. However, today the questions of the Senate sometimes seem to take the form of questions about nominee's personal opinions on controversial issues. The Senate is likely to perceive how judicial philosophy of nominees would affect their interpretation of controversial issues under federal laws enacted by the Congress, which may compromise the independence of the judiciary and judges. As Professor Viet D. Dinh asserted "The danger is that judges will come to be agents of the Senate's policy preferences" [3], but not the Constitution and laws.
Another threat by the Congress finds expression in jurisdiction-stripping. The power of
the Congress to establish and restrict jurisdiction of federal courts comes from the constitutional provision specifying, "the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make" [4]. The explicit example makes it clear. In December 2005 before Hamdan v. Rumsfeld case was heard by the Supreme Court, the Congress enacted Detainee Treatment Act [5] which aimed at withdrawing from federal courts jurisdiction to hear objections raised by suspected terrorists to their detention and treatment at Guantanamo Bay. After the court held that the law did not mean to strip jurisdiction over habeas petitions, in 2006 the Congress passed the Military Commissions Act, which removed jurisdiction over cases of Guantanamo detainees from federal courts.
The most interesting thing is that the Congress enacts an appropriate law at issue in a case pending before the Supreme Court. Viet D. Dinh claims that "Congress has exercised the authority to strip federal courts of jurisdiction for centuries, and judicial independence has not suffered measurably for it" [6]. According to John Ferejohn, "Politically, these events may not
appear confrontational, but their cumulative effect can substantially erode the capacity of the judiciary to protect individual liberties by removing such issues from the federal courts. Not every attempt to limit the jurisdiction of federal courts, however, is an objectionable intrusion on judicial independence. Some restrictions are aimed at increasing the efficiency of the system by removing certain unimportant cases or those that can be fairly resolved by state courts" [7].
Attempting to reduce the budget granted by the Congress to the judiciary is also another matter of threat to judicial independence. In the USA since 1939 the judicial branch has been administrating the budget and funds allocated by the Congress to the federal judiciary on its own. The judicial branch estimates its needs and submits them directly to the Congress or to the executive branch for incorporation into the national budget document without change. However, the current procedures for judicial budgeting hardly prevent the judiciary from control by the other branches. The practice shows "the executive branch, for example, can influence judicial funding levels by its recommendations to Congress on fiscal policy. And, of course, Congress still determines the level of
judicial branch funding. Legislators can use their funding power to show their approval or disapproval of how judges administer the courts and, although it probably happens rarely, to show their approval or disapproval of judicial decision" [8].
The Constitution of the United States provides that federal judges "receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office" [9]. Judges have complained the whole history that their salaries are not sufficient. In many parts in the country, freshmen lawyers occasionally earn more than federal judges. Being aware of that the federal judges remind that rejection by the Congress to let their salaries keep pace with inflation may cause harm to judicial independence [10]. Chief Justice Roberts in his second "Year-End Report on the Federal Judiciary" delivered on January 1, 2007 described the stagnation in judicial pay as a "constitutional crisis that threatens to undermine the strength and independence of the federal judiciary" [11].
Impeachment is a measure which can be applied by the Congress to remove federal life-tenured judges for their "treason, bribery, or other high crimes and misdemeanours" [12]. The Congress
first tried to impeach Associate Justice Samuel Chase in 1804 abusing this power. Samuel Chase with a volcanic personality had been appointed by the Federalist president. After the presidency and most Congress seats were gained by Democratic-Republicans "Chase showed no willingness to tone down his bitter partisan rhetoric... Representative John Randolph of Virginia, at the urging of President Thomas Jefferson, orchestrated impeachment proceedings against Chase, declaring he would wipe the floor with the obnoxious justice. The House voted to impeach Chase on March 12, 1804, accusing Chase of refusing to dismiss biased jurors and of excluding or limiting defense witnesses in two politically sensitive cases. The trial managers (members of the House of Representatives) hoped to prove that Chase had "behaved in an arbitrary, oppressive, and unjust way by announcing his legal interpretation on the law of treason before defense counsel had been heard" [13]. Nevertheless, when the case reached the Senate "Chase's defense team, which included several of the nation's most eminent attorneys, convinced several wavering senators that Chase's conduct did not warrant his removal from office. With at least six Jeffersonian Republicans joining the
nine Federalists who voted not guilty on each article, the Senate on March 1, 1805, acquitted Samuel Chase on all counts" [14].
The President of the USA as a political figure is likely to pose a danger upon the judicial independence. Announcing the impeachment upon Samuel Chase at the urging of President Thomas Jefferson can server an explicit example for that. Despite the fact that the US President appoints federal judges, political party from which the president was elected plays a significant role in the judicial selection process as the president consults leaders of his party, mainly senators of the Congress. Some researchers claim that "because each president draws appointees almost exclusively from members of his political party, the judges so appointed are in effect party functionaries on the bench" [15]. Opinions of judges appointed by Presidents Woodrow Wilson through William Clinton affirmed "that decisions of judges who had been Democrats were more "liberal" than the ones of those who had been Republicans, although the differences were slight. .No doubt some of the over 3000 persons who have served as federal judges since 1789 have decided specific cases with an eye to pleasing the
presidents who appointed them" [16]. Besides, when justices did not make a concession to the political preferences of the other branches, the president attempted to expand the seat number of justices in the federal courts. They put their additional justices whom they thought to be loyal to their policy in order to receive more supporting votes of the Supreme Court justices. This attempt is named "Court packing".
What has been intended by the presidents mentioned above has not been absolute and true all the time. During the period of Great Depression, in 1937, the founder of New Deal program President Franklin Delano Roosevelt proposed that the Congress expand the seats in the Supreme Court up to 15 justices as laws enacted by the Congress intending to realization of New Deal program had been invalidated by the conservative justices of the Supreme Court. Court Packing Plan was defeated due to the congressional disapproval and this is regarded as a victory for the independence of the federal judiciary [17].
President Theodore
Roosevelt complained of Justice Oliver Wendell being disappointed. President Richard Nixon and Clinton were disappointed that unanimous
Supreme Courts with their appointees tried them whilst those presidents were in the post. President Harry Truman did not say in vain, "Whenever you put a man on the Supreme Court he ceases to be your friend" [18]. This is why President Carter noted, "as President I have taken an oath to uphold the laws of the United States as interpreted by the Supreme Court of the United States. So, if the Supreme Court should rule, as they have, on abortion and other sensitive issues contrary to my own personal beliefs, I have to carry out, in accordance with my solemn oath and my duties as President, the ruling of the Supreme Court" [19].
Some portions of threats to judicial independence are attributable to interrelation between ordinary judges and officer judges (chairman of the court, chief justice) and between lower courts and higher courts.
Law Professor Lydia Brashear Tiede notes that courts of higher level may influence courts of lower level. Selecting which lower court cases to review depends on the certiorari of the Supreme Court. In turn, this send signals to lower courts about what behaviour will let review and possible reversal and what behaviour will not. According to Cameron, Segal, and Songer, a
conservative higher court tends to review liberal rulings of lower courts than conservative lower court ones.
Also, within a certain court, judges with chairmanship, for instance, chief appellate judges may affect other appellate judges assigning cases to particular panels of judges and composing those panels. Atkins and Zavoina observed the acts of the Fifth Circuit's Chief Appellate Judge between 1961 and 1963. They found that the Chief Justice formed the panels of judges hearing race relations cases in such a way as to represent the Chief Justice's preferences in these cases. By deciding which judges would hear such contentious cases, the Chief Justice was able to structure panels to include judges with opinions similar to his own [20].
Allowing the judicial process to be not sympathetic to extraneous influences is one of main factors for seeking judicial independence so that judges can weigh evidence and apply laws in an objective manner. Professor John Ferejohn notes that "In our market driven society, such influences seem as likely to emanate from powerful social or economic forces as from other public officials. Public officials, after all, have a duty to defend the Constitution even if they sometimes fail to live up to that duty" [21]. Judges must not bring to
their work the preferences and perceptions of a dominating class of the society. Judges are possibly offered a reward for decision-making in favour of an individual interest. Legislation has to take it into consideration and must never allow this. Therefore, the US Constitution considers bribery as one of the causes of impeachment.
When criticism is turned to as the public attack on judicial independence, I would like to consider historical occurrence concerning Earl Warren who became the Chief Justice in 1953. He is acknowledged as the second greatest Supreme Court Chief Justice since John Marshal, the first Supreme Court Chief Justice. Brown v. Board of Education case in 1954 is recognized as one of the greatest Supreme Court decisions of the 20th century. The ruling unanimously held that the racial segregation of children in public schools violated the Equal Protection Clause of the Fourteenth Amendment [22]. Chief Justice Earl Warren did a lot about school desegregation writing the Brown opinion. His critics, especially segregationists, from Southern states blamed Warren on putting forward his own opinions on the Constitution rather than relying on the Framers' intent. Billboards full of
anger appeared across the country proclaiming "Impeach Earl Warren" [23].
Judicial independence is not immunity from criticism [24]. However, some scholars observe that "judicial independence is vulnerable to assault; it can be shattered if the society law exists to serve does not take care of assure of its preservation" [25].
Simultaneously, others hold that "Criticism encourages judges to realize more fully the practice of ignoring irrelevances when they decide cases" [26].
Viet D. Dinh asserts that "Public criticism of judicial decisions does not, by itself, necessarily threaten the independence of the judiciary; in fact, under some circumstances, such critiques paradoxically can help bring about a more robust form of judicial independence" [27], but "A real danger exists that the publicly stated views of political elites - activists, the news media, and officeholders - will condition the environment in which judges operate, leading career-minded members of the federal judiciary to tailor their rulings to conform to the views of the politically influential" [28]. Seen in this light, public criticism can mostly influence on career judges. Who are career judges actually? Career judges are
those who seek promotion to higher or more prestigious courts. Mostly state-judges and lower federal court judges would expect to advance through ranks. Career judges handle a case based on not what laws demand, but what can favor the political elites knowing that while examining nominees for higher court justices the Senate would consider nominees' prior adjudications and judges whose previous rulings seem disagreeable for the president and senators are unlikely to be nominated and confirmed to the higher ranking judicial post [29].
It is necessary to look into selection methods in the states within the United States so as to grasp a real provision of judicial independence not only at the federal level, but also at the state level. Up to the 19th century in many states judges were selected via gubernatorial appointment. Then states replaced this kind of selection with partisan or non-partisan elections. In the 20th century some states attempted to change this system with gubernatorial appointment based on the list of nominees developed by commissions consisting of professions of law and other fields. Elected judges have to stand for "retention elections" which takes place periodically. In retention
elections neither of two candidates has to be chosen, but voters have to choose "yes" for the candidate to retain the judge in post, or "no" to remove the judge from office [30].
Many argue that the election method is the method which can influence negatively on transparency of judicial independence. The judges whose rulings conform to the laws, but not popular preferences are said to feel fear of an electoral retaliation observed in retention elections to unpopular decisions. Critics think that so selected judges may endanger their independence being obliged to financial supporters in the election campaign. Research of retention election system in 10 states showed that substantial amount of respondent judges became more
susceptible to public opinion than they would otherwise be [31].
CONCLUSION
Judicial independence is a cornerstone of the United States legal system. The US Constitution reflects the legacy of judicial independence, which is regarded a constitutional value. For years, judicial independence has been a concern of scholars and lawyers. The US academic and legal community make their voice with regard to any threats to judicial independence since they believe that judicial independence must be always valued and protected. This definitely plays a key role in withstanding challenges faced by the judiciary in any society.
REFERENCES
1. Michael D. Gilbert. Judicial independence and social welfare. Michigan Law Review. Vol.112. Issue 4. - P.577.
2. Gerald N. Rosenberg. Judicial Independence and the Reality of political Power. The Review of Politics, Vol. 54, No. 3, Special Issue on Public Law (Summer, 1992). - P.376-377.
3. Viet D. Dinh. Threats to judicial independence, real and imagined. Daedalus, Vol. 137, N 4, On Judicial Independence (Fall, 2008). - P.69.
4. The US Constitution. Article III Section 2. See
http://constitutioncenter.org/constitution/the-articles/article-iii-the-judicial-branch
5. Public Law No. 109-148, sections 1001-1006 (2005). See http://www.gpo.gov/fdsys/pkg/PLAW-109publ148/pdf/PLAW-109publ148.pdf
6. Viet D. Dinh. Threats to judicial independence, real and imagined. Daedalus, Vol. 137, N 4, On Judicial Independence (Fall, 2008). - P.69.
7. John Ferejohn. Independent judges, dependent judiciary: explaining judicial independence. Southern California Law Review. Vol. 72:353. 1999. - P.355.
8. Guidance for Promoting Judicial Independence and Impartiality. Revised edition. 2002. Washington DC. - P.136 See http://pdf.usaid.gov/pdf_docs/pnacm007.pdf
9. The US Constitution. Article III Section 1.
See http://constitutioncenter.org/constitution/the-articles/article-iii-the-judicial-branch
10. Guidance for Promoting Judicial Independence and Impartiality. Revised edition. 2002. Washington DC. - P. 136
See http://pdf.usaid.gov/pdf_docs/pnacm007.pdf
11. John G. Roberts, Jr., "2006 Year-End Report on the Federal Judiciary" (2007). See www.supremecourtus.gov/publicinfo/year-end/2oo6 year-endreport.pdf
12. The US Constitution. Article II Section 4.
See http://constitutioncenter.org/constitution/the-articles/article-iii-the-judicial-branch
13. See http://www.senate.gov/artandhistory/history/minute/Senate_Tries_Justice.htm
14. Id.
15. Guidance for Promoting Judicial Independence and Impartiality. Revised edition. 2002. Washington DC. - P. 139
See http://pdf.usaid.gov/pdf_docs/pnacm007.pdf
16. Id.
17. See http://www.history.com/this-day-in-history/roosevelt-announces-court-packing-plan; also http://legal-dictionary.thefreedictionary.com/FDR's+Court+Packing+Plan
18. Jack E.Holmes, Michael J. Engelhardt, Robert E. Elder, Jr. American Government: Essentials & Perspectives. McGraw-Hill, Inc. 1991. -P.257.
19. Keith E. Whittington. Presidential Challenges to Judicial Supremacy and the Politics of Constitutional Meaning. Polity. Volume XXXIII, Number 3. Spring 2001. -P.383-384.
20. Lydia Brasher Tiede. Judicial independence: often cited, rarely understood. Journal of contemporary legal issues. Vol. 15: 129, 2006. - P. 153-155.
21. John Ferejohn. Independent judges, dependent judiciary: explaining judicial independence. Southern California Law Review. Vol. 72:353. 1999. - P. 369.
22. See http://www.pbs.org/wnet/supremecourt/rights/landmark_brown.html
23. See http://constitutioncenter.org/timeline/html/cw11_12268.html
24. Linda Greenhouse. Independence: why and from what? Daedalus, Vol. 137, N 4. On Judicial Independence (Fall, 2008). - P.5-6.
25. Id.
26. Viet D. Dinh. Threats to judicial independence, real and imagined. Daedalus, Vol. 137, N 4, On Judicial Independence (Fall, 2008). - P.72
27. Id. - P.64.
28. Id. - P.72.
29. Id.
30. Guidance for Promoting Judicial Independence and Impartiality. Revised edition. 2002. Washington DC. - P. 140
See http://pdf.usaid.gov/pdf_docs/pnacm007.pdf
31. Id. - P.140-142.
LEGAL ASPECTS OF THE PROTECTION OF WOMEN'S RIGHTS
WITHIN UN SYSTEM
Khayrulina Asal Baxodirovna,
Lecturer of Tashkent State University of Law E-mail: asalkhayrulina@gmail. com
A R T I C L E I N F O
A B S T R A C T
Keywords:
UN, elimination, discrimination, women's rights, the role of women, society, Platform for Action, Optional Protocol.
Article analyses the international mechanisms for the protection of women's rights, the elimination of all forms of discrimination against women, to create and improve the effectiveness of national mechanisms for the advancement of women at the highest political level, as well as the importance of UN activities in resolving this problem.
INTRODUCTION
Multidimensional cooperation with the United Nations is a strategic vector of foreign policy in the framework of the reforms being carried out in our country. Of particular relevance it is significant revitalization of the UN throughout the world community. This fact is explained by the fact that the problems of war and peace, genocide and discrimination on various grounds have increased to such an extent that the states could
not solve these problems at the local level, and in order to maintain relative balance, it became necessary to attract international forces.
In particular, the problem of discrimination against women over the past decades has not only gained territorial distribution, but also reached a qualitatively new level. On the one hand, the continuous struggle for gender equality led to a wide wave of emancipation, starting with the countries of the
Scandinavian Peninsula and Western Europe, and ending with the countries of the post-Soviet region. On the other hand, the acquisition of independence by a number of states became the basis for returning to historical sources and, unfortunately, not always compatible with universal human values. Thus, under the slogan of reviving historical values and cultural traditions of nations, today there is practically a return to those forgotten and outdated relations in society, when a woman did not belong to subjects who could have rights.
The spread of discrimination against women, and especially its form as violence, reached the critical point when there was a real danger for the future of all mankind. After all, it is no secret to anyone that the gene pool of the nation, and on the scale of the entire planet, the gene pool of the whole nation depends for the most part on the woman. It is the position of a woman, the conditions in which she lives, that is an indicator of the positive or negative state of a given people.
Realizing the seriousness of this problem and realizing the impossibility of states to eradicate it at the national, domestic level, recently the UN began to intensify and strengthen international mechanisms for the revival,
preservation, maintenance and protection of women's rights.
MAIN BODY At present, the UN activities on resolving women's issues have achieved successful results and have established themselves in the world community as a whole system - the UN system for the protection of women's human rights. This system assumes the existence of various international mechanisms for the protection of women's rights.
The concept of an international mechanism for the protection of women's human rights is very broad. Its most important components are:
s International documents (conventions, declarations, treaties)
s International organizations and their bodies
s Practice of application of international documents
s International control and dispute resolution procedures.
Taking into account the geographical and other features of the Republic of Uzbekistan, it should be noted that not all international mechanisms for the protection of women's rights may be applicable in relation to our republic.
From the point of view of international legal protection of women's rights, a special role is assigned to the 1979 Convention on the Elimination of All Forms of
Discrimination against Women. The specificity of this Convention lies not only in the broad coverage of the gender problems it regulates, but also in the fact that it has now been ratified by most of the existing states, to which, however, the United States is not. [1]
In accordance with article 17 of the 1979 Convention, a Committee on the Elimination of Discrimination against Women is established to review the implementation of its provisions.
The functions of the Committee are carried out mainly through the consideration of reports submitted by States parties. Based on the results of its consideration, the Committee makes suggestions and recommendations. He may also invite UN specialized agencies to submit their reports and may receive information from non-governmental organizations. Each year, the Committee submits a report on its work to the General Assembly through the Economic and Social Council, and the status of women for information.
By ratifying or acceding to the Convention, States parties undertake a legal obligation to submit exhaustive reports. Many states do not fulfill this obligation. Regardless of the reason for the failure to fulfill this obligation, the end
result is a large number of unreleased reports and a significant proportion of incomplete or inadequate reports.
The reports submitted by the participating States do not always accurately reflect the human rights situation of women in a given country and do not always identify specific problems of concern. Information and statistics from independent human rights organizations bring great value to the Committee when assessing the actual situation of women in individual states. Such materials would be extremely useful for the members of the Committee in their tasks of analyzing the reports of the States parties. To the extent possible, these materials should contain references to specific articles of the Convention that are related to the issues or issues under consideration. Non-governmental and other organizations may apply in writing to the Committee through the Division for the Advancement of Women. This division may also provide information on which States parties 'reports will be considered at a particular session. It should be noted that accredited
representatives of non-governmental organizations may attend the sessions of the Committee as observers. Thus, in order to end widespread and systematic
violations of human rights, an effective mechanism is to prepare a "shadow report" and send it to the Committee on the Elimination of Discrimination against Women, where the government violating rights already submits periodic official reports. In addition, a shadow report should be sent to any internal human rights administrative body.
The Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, [2] approved by the UN General Assembly on October 6, 1999, allows the right to file individual complaints by women and women's non-governmental organizations about a violation of the Convention. However, the Republic of Uzbekistan has not ratified this protocol; accordingly, this mechanism is not available for our country.
However, the CEDAW Convention does not fully regulate relations in the protection of women's rights. Thus, the Convention does not define the term "violence" against women. Consequently, due to the lack of authority, the CEDAW Committee is not entitled to address this issue.
At the same time, the main obstacles to the realization of the rights of women and their participation on an equal basis with men in society are violence and the
threat of violence against women. Meanwhile, acts of violence often go unnoticed and unregistered, and therefore no action is taken against them. With the growth of general tension and violence in society, as is the case in a region in transition, the safety of women at home, at work and in public places is often seriously weakened.
Since the recognition that violence against women is an important part of the subordination of women, different types of violence have been interpreted differently. Initially, international human rights bodies did not engage in violence against women, because it was considered a "private" affair, involving individuals and not subject to international conventions. The international community considered the problem in the context of state sovereignty in the sense that any intervention by the United Nations or other international body would be perceived as a violation of the sovereignty of the state.
However, on the basis of the principle of state responsibility towards its citizens, stipulated in international conventions, it became possible to transfer the concept of violence against women from the "private" to the "nation-wide" sphere.
The Declaration on the Elimination of Violence against
Women, adopted by the United Nations in 1993, defines the term "violence against women" as actions that include "any act of violence committed on the basis of a sexual attribute that causes or may cause physical, sexual or psychological damage or the suffering of women, and the threat of such acts, coercion or arbitrary deprivation of liberty, whether in public or private life. "Violence against women has its own specifics, and therefore requires special measures. The conditionality of such violence by gender is quite obvious; women, for example, are more at risk of violence at home than on the street, and violence against women often manifests itself in the form of sexual assault.
Acts of violence against women and girls are a serious violation of their human rights and cause great harm to their physical and mental health. The World Bank estimates that in industrialized countries, rape and domestic violence account for 19 percent of the total mortality rate for women aged 15-44 years. This means that women lose every fifth year of healthy life as a result of injuries, illness or premature death due to acts of violence.
The Fourth World Conference on Women, held in Beijing in 1995, reaffirmed that one of the priorities of
government and UN policies is the full and equal enjoyment of human rights and fundamental freedoms that are vital for women's progress. The conference stressed that governments should not only curb the violation of women's human rights, but also take active steps to support and protect these rights.
The Platform for Action adopted at the Beijing Conference includes the lack of respect for the human rights of women among the 12 most urgent tasks requiring the adoption of state and international measures. The platform calls for the maximum use of all mechanisms and instruments for the protection of human rights, especially the UN Convention on the Elimination of All Forms of Discrimination against Women. It also stresses the importance of guaranteeing equality and non-discrimination in law and in practice and the dissemination of legal literacy.
The action platform contains a set of measures for each identified problem, which should lead to radical changes. Their implementation is a primary responsibility of governments, but it also depends on a wide range of institutions in the public, private and nongovernmental sectors at the community level, as well as at the
national, regional and international levels. [3]
Governments have primary responsibility for implementing the Platform for Action. Its implementation requires
commitment to the Platform at the highest political level, and governments should act as leaders in coordinating, monitoring and evaluating progress in the advancement of women.
In order to implement the Platform for Action, it is necessary for governments to take measures to create and improve the effectiveness of national mechanisms for the advancement of women at the highest political level, relevant internal and inter-departmental procedures and personnel structures and other institutions that have the authority and capacity to increase women's participation and inclusion gender analysis in policies and programs. Governments should commit themselves to ensuring gender balance, in particular through the creation of special mechanisms in all state-appointed committees, councils and other official bodies, as appropriate, as well as in all international bodies, institutions and organizations, primarily through the presentation and promotion of for more women candidates.
The United Nations Commission on the Status of Women at the forty-second session in 1998 invited UN member countries and the international community to take further measures to support women's human rights, including the incorporation of a gender perspective into all relevant policies and programs. Among the findings of the Commission is the need to organize and support the holding of national and local dialogues on the importance of human rights, gender discrimination and violations of women's rights. The resolution also stressed the need for a guaranteed legal and regulatory framework that ensures the full realization of the human rights of women and girls.
In the advancement of women and the achievement of gender equality, the Platform for Action highlights the role of the UN Convention on the Elimination of All Forms of Discrimination against Women. The Convention is not only an international document on the rights of women, but also a guide to action for governments to ensure that these rights are respected.
It is impossible to overestimate the importance of the special action program for the advancement of women adopted in the Republic of Uzbekistan. This program is called the National Platform for Action to
improve the status of women in Uzbekistan and enhance their role in society. It defines the general strategy and priority directions of the state policy on women and is aimed at implementing the principle of equal rights and freedoms, creating equal opportunities for women and men in accordance with the Constitution of the Republic of Uzbekistan, international
commitments and recommendations of the IV World Conference on Women "Actions for Equality , development and peace ", taking into account the real socio-economic situation in modern Uzbekistan.
The National Action Platform envisages uniting the efforts of the Government, parliamentarians, state and public organizations, and the civil sector to increase the activity of women in the processes of the formation and development of a democratic society.
In 2017, the Republic of Uzbekistan submitted the V report to the Committee on the Elimination of Discrimination against Women. This document reflects all measures to bring national legislation and law enforcement practice in line with the requirements of the Convention. Following the consideration of the fifth periodic report by the UN Committee, the strategic measures of Uzbekistan were positively
evaluated and final
recommendations were presented.
It should be noted that today Uzbekistan has joined more than 70 international documents, including 10 UN treaty documents, and fulfills all its obligations in the field of human rights. In order to ensure the rights of women in accordance with international norms and legal standards, the country has also acceded to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). [4]
In turn, Uzbekistan also joined such crucial in the field of human rights documents as:
(a) The Second Optional Protocol to the International Covenant on Civil and Political Rights, aiming at the abolition of the death penalty, on 23 December 2008;
(b) The Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, on 23 December 2008;
(c) The Optional Protocol to the Convention on the Rights of the Child on the sale of children, child prostitution and child pornography, on 23 December 2008;
(d) The Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and
Children, supplementing the United Nations Convention against Transnational Organized Crime, on 12 August 2008;
(e) The International Labor Organization Convention No. 138 on Minimum Age for Admission to Employment and No. 182 on the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labor, in April 2008.
At the same time, Uzbekistan today is one of the few non-aligned countries to the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women. This fact means that our state, our society and our Woman are extremely limited in their ability to protect their violated rights at the international level.
In conclusion, I would like to say that the accession of the Republic of Uzbekistan to the Optional Protocol to the Convention
will allow our state to make a significant step towards fully ensuring the principle of not discrimination not only in legislation, but also in society. Moreover, by joining the Protocol, Uzbekistan will be able at the international level to declare itself as a state, fully following the course of the advancement of women, proclaimed by the Beijing Platform for Action and the National Platform for Action.
Thus, the significance of the UN activities in resolving this problem is undoubtedly great. However, there is a need for mutually complementary, interpenetrating and interdependent cooperation between the UN and governments and NGOs of states. Indeed, without the existence of appropriate national, intra-state mechanisms for the implementation of UN programs and documents, the achievement of this goal is impossible.
REFERENCES
1. S.V. Polenina "Women's rights in the human rights system: the international and national aspect" Moscow-2000, p. 177
2. Optional Protocol to the Convention of All Forms of Discrimination against Women //un.org//
3. "Beijing Declaration and Platform for Action and Beijing + 5: Political Declaration and Final Document" Department of Public Information, New York 2002
4. Round table on the implementation of the UN Convention December 14, 2017eastwoman.uz
TRANSPARENCY IS AN IMPORTANT PRINCIPLE OF THE ELECTRONIC GOVERNMENT OPERATIONS IN THE REPUBLIC OF
UZBEKISTAN
Umarova Iroda Muhammedovna,
Lecturer of the Department of Theory and History of State and Law of Tashkent State University of Law _E-mail: [email protected]
A R T I C L E I N F O
A B S T R A C T
Keywords:
concept of electronic government, information and communication technologies, corruption, transparency.
The article analyzes the principle of transparency in the activities of state bodies, the impact of information and communication technologies on reducing corruption, as well as the role of e-government in public administration.
INTRODUCTION
The development of information and communication technologies in the modern world everywhere entails multilateral trends, including the transformation of the spheres of human activity and social institutions. In the context of the transformation of political institutions and state governance, taking into account the requirements of the information age, national governments set themselves an urgent task today and for the future -ensuring the effective formation,
functioning and development of the "Electronic government" system.
As President Shavkat Mirziyoyev said, in modern conditions, the issues of widespread introduction of advanced information and communication technologies, and the creation of reliable complexes of information systems and a database of "electronic government" are gaining priority [1].
The Presidential Decree "On the Strategy for the Further Development of the Republic of Uzbekistan" clearly states that the
implementation of the Action Strategy will take place in five directions. In particular, within the framework of the implementation of the first direction "Improvement of state and public construction", it is envisaged to improve the "Electronic government" system, improve the quality and efficiency of public services, practical implementation of public control mechanisms, strengthen the role of civil society institutions and the media [2].
MAIN BODY
Now it is necessary to consider theoretical approaches to understanding "e-government". The concept of "Electronic government" was first covered in the United States in 1991, but at present, international practice has already accumulated sufficient experience in the formation and development of this system.
Electronic government (e-Government) is a method of providing information and providing an already formed set of public services to citizens, business, other branches of government and government officials, in which personal interaction between the state and the applicant is minimized and information technologies are used as much as possible. In this definition, it can be noted that special attention is paid to minimizing the
contact of state bodies (officials) with the population [3].
Electronic government is an electronic document management system for public administration, based on the automation of the entire set of administrative processes throughout the country and serving the purpose of significantly increasing the efficiency of public administration and reducing the costs of social communications for each member of society.
Based on these two definitions, it becomes clear that e-government is not a separate project and an evolutionarily new stage of state development. Electronic government is not an analogue or addition to any part of public administration, it is a full-fledged system of the future, and in some aspects of the present, which brings the development of the state (citizens, business, government) to a completely new level of interaction and opportunities. In order to ensure access of individuals and legal entities to information, guarantees the right to receive information on the activities of state power and administration bodies and increase the responsibility of state power and administration bodies, and their officials for decisions made, a number of effective measures have
been taken in the Republic of Uzbekistan.
The introduction and enhancement of the role of e-government in the provision of public services began with the Decree of the President of June 27, 2013 of the Comprehensive Program for the Development of the National Information and Communication System of the Republic of Uzbekistan for the period 2013-2020 and the Law of the Republic of Uzbekistan of 2015 "On e-Government".
This law defines several principles on the basis of which the electronic government of the Republic of Uzbekistan operates:
openness and transparency of the activities of state bodies;
equal access of applicants to electronic government services;
provision of electronic public services on the principle of "one window";
unification of documents of state bodies;
use of uniform e-government identifiers;
continuous improvement of the procedure for the provision of electronic government services; ensuring information security. Let's consider the first principle - openness and transparency of the activities of state bodies. According
to Article 6 of the Law "On Electronic Government", the activities of state bodies in the field of electronic government are carried out openly and transparently in accordance with the legislation. That, in turn, may be limited by other laws, such as the Law "On commercial secrets", "On bank secrets", etc. Information on the procedure for the provision of electronic public services to applicants is public and open and is published on the official websites of state bodies providing electronic public services.
Transparency in Webster's dictionary is regarded as "the degree of openness and susceptibility to adjustments in laws, regulations, agreements affecting international trade; the level of accountability and responsibility in public
administration" [4]. R.B. Mitchell considers transparency to be a fundamental characteristic of the political system: it includes the openness of the system and decision-making procedures for external observers. At the same time, he nevertheless gives it an informational dimension, and also proposes to narrow down this concept and consider transparency only as a certain amount of available information regarding the functioning and collisions of the ruling regime. R.B. Mitchell emphasizes that
transparency is not homogeneous; its level is not the same both in different political systems, and within one system [5]. Transparency is multi-level in time and space. Some systems may be more transparent, others less; in certain cases, a particular political regime may be more open in certain aspects than another; finally, over a certain period of time, the system can demonstrate a higher level of transparency than before and in comparison with other political regimes.
The problem of transparency of political governance is extremely important in a transitional period, when the population's access to information becomes a key factor in social development. Only thanks to the expanding opportunities for political participation of various social groups and non-governmental organizations, the increasing responsibility and transparency of government, the free flow of information, and the suppression of the criminalization of political activity, can the quality of life of citizens be improved and the process of reforming the political system and state structure ensured success;
As one of the elements of economic and political regulation, transparency cannot act as a unified tool due to the pronounced structuredness of the management
space, and therefore, as a rule, it is differentiated by industry. There are three areas, covering all administrative relations in the state, where transparency is essential: a) public administration (political management); b) economics (economic management); c) law enforcement (control management).
Based on the foregoing, the procedure for the provision of electronic public services, as well as the interaction of state bodies providing electronic public services, is subject to mandatory improvement among themselves, including by:
elimination and (or) integration of redundant administrative procedures and reduction of the number of coordinating functions of state bodies;
reducing the number of documents submitted by applicants;
optimization of interagency electronic interaction;
reducing the time for the provision of electronic government services.
Accordingly, government bodies that provide electronic government services are obliged to ensure information security of information systems and information resources used in the provision of electronic government services.
Let's turn to statistics for the period of existence of electronic
government. The number of applications received through a single portal - 14.2 million, the center of public services - 10.3 million. Currently, more than 178 types of public services are provided using e-government, which in turn reduces transaction costs and prevents corruption [6].
The emergence of new principles such as transparency and openness, in the conditions of the formation of modern national democracy, make it possible to build a civil society in which there is no bureaucracy and corruption.
REFERENCES
1. https://president.uz/uz/lists/view/3851
2. The Presidential Decree "On the Strategy for the Further Development of the Republic of Uzbekistan" https://lex.uz/docs/3107036
3. Caves, R. W. (2004). Encyclopedia of the City. Routledge. p. 180.
4. https://www.merriam-webster.com/dictionary/dictionary
5. https://www.jstor.org/stable/3235370?seq=14#metadata_info_tab_contents
6. https://my.gov.uz/ru/site/statistic-page
GENDER EQUALITY IN UZBEKISTAN: PROBLEMS AND SOLUTIONS
Bobokulov Azizbek Zokhid ugli
student of Tashkent State University of Law E-mail: azikboboqulov99@gmail. com
A R T I C L E I N F O
A B S T R A C T
Keywords:
Gender equality, feminism, equal rights, violence, United Nations, resolutions of Cabinet of Ministers, democracy, society, harmonization, state structures, female ministers, female mayors.
This article discusses the reforms being carried out in the Republic of Uzbekistan to achieve gender equality, their effectiveness, and focuses on the protection of the rights of women living in the country and the creation of adequate conditions for them. It is also intended to provide suggestions that provide the right solutions to existing problems.
It is known from the history of many developed countries that in no country has democracy been built on its own and reached the top of society in a short period of time. In this regard, we can safely say that the reforms carried out in our country in recent years, the adoption of laws and regulations, the gradual harmonization of relations between the state and its bodies and citizens are a sign of confident and courageous steps towards democracy. The changes in freedom
of speech, the liberalization of monetary policy, the review of the activities of public authorities in terms of openness and transparency, as well as the work to ensure freedom of conscience are highly recognized by many international organizations and states. In fact, in 2019, the world-famous British magazine The Economist [1] recognized Uzbekistan as the country of the year. In addition to the above-mentioned reforms, President
Mirziyoyev pays special attention to ensuring the rights of women in our country, protecting them from various forms of aggression and, in general, gender policy in our country.
It should be noted that in the last two years, a number of normative and legal acts aimed at ensuring gender equality have been adopted in our country. In particular, the Laws of the Republic of Uzbekistan "On Guarantees of Equal Rights and Opportunities for Women and Men [2]" and "On Protection of Women from Oppression and Violence [3]" adopted on September 2, 2019 and Resolution of the Cabinet of Ministers of March 30, 2020 "On approval of the Regulation on the procedure for gender and legal examination of regulatory legal acts and their drafts [4]". The first law directly defines the main directions of state policy, the powers of state bodies to ensure equal rights and opportunities for women and men. The purpose of the second document is to regulate relations in the field of protection of women from all forms of oppression and violence. This begs the question. How does this law relate to the issue of gender equality? It is precisely the oppression and violence against women that is one of the main reasons for the elimination of gender equality. Therefore, the development
of this law could make a significant shift in policy in this area. As for the resolution of the Cabinet of Ministers "On approval of the Regulations on the procedure for gender-legal examination of regulations and their drafts," this document is also important for a more effective organization of gender equality policy. We know that in many cases, normative-legal documents, which are the product of norm-setting, provide more opportunities for members of the opposite sex, especially men. As a result, discriminatory situations arise between women and men, whether we like it or not. In order to prevent such cases, it is important to conduct a gender-legal examination of normative documents developed by the judiciary.
Unfortunately, despite all these efforts, the Republic of Uzbekistan is not making great strides in ensuring gender equality. As a simple example, we can cite the fact that Uzbekistan ranks 64th in the index of countries on gender equality, published by the UN Development Program at the end of 2019 [5]. This figure, of course, did not appear spontaneously. At this point, some of our citizens who have seen this figure may object. Even a group of our women may come out with arguments: "We are fine ..., all the
conditions for studying and working have been created for me." (A group of women came up with their own anti-arguments against feminist girls who organized their own challenge in July 2020.) However, there are a number of shortcomings and factors that determine our position in the above index. One thing to admit is that in our remote areas and villages, we have women who don't have a cell phone in their hands, let alone go online and see this index. We have sisters who can't afford to read 10 pages of books because of their daily work, let alone going to university. We have women who prepare breakfast, lunch, dinner for their children and spouses, unfortunately, we also have men who insult and beat their wives instead of thanking them. Even our girls, who pick cotton all day, raise livestock, farm, and do what men must to do, are unfortunately not gone. There are also those who take the problems listed above as an exaggeration. However, the worldview of people will change after seeing the situation in the villages located in some areas where communication, transport and education infrastructure are underdeveloped.
So where did these problems come from? How can these problems be overcome? To answer such questions, it would be
expedient to dwell on the shortcomings of the state in this area, as well as the family environment and the attitude of our people. However, it would be useful to discuss some suggestions that may be a solution to these problems. First of all, it should be noted that the state is often content with the development of the above-mentioned laws and regulations. There is no single mechanism to ensure the application and unconditional application of these documents in all regions of the country. It is true that citizens are given some authority to self-government bodies to deal with these issues, but in many cases their actions are limited to a recommendatory nature. Therefore, the state should expand the powers of Mahalla in this regard. Women's rights will continue to be violated if Mahalla structures do not have a specific power that can turn the situation in the right direction. In addition, the courts must thoroughly consider crimes against women and impose unavoidable and severe penalties on the perpetrators. In most cases, the courts and law enforcement agencies are concerned with reconciling the parties. This is handy for some individuals (often for husbands, for parent-in-law).
If we look directly at the family environment, again in those remote areas, parents do not pay much attention to the educational process of their daughters, their future career choices, to build their careers in general. Instead, they are raised in the spirit of doing housework, unconditionally obeying the orders of their future husbands, parents-in-law, and caring for their children. Of course, at first glance it may seem that there is nothing wrong with this situation. However, it is unfortunate that a girl lives her whole life, almost without any knowledge, first in her parents' house and then in her husband's house, raising children and working illegally, not doing enough for herself and society. In the same way, the humiliation and oppression of women who are passionate about their families by their husbands makes a person even more miserable. In order to overcome such situations in some way, parents should be encouraged to bring up both their daughters and sons properly. First of all, let's talk about families raising boys. Parents should instill in their sons the idea that every girl or woman should be treated as her mother, sister, in the spirit of respect for the girl, the woman in general. It is necessary to warn our boys about the need to protect them from thugs who bully
our girls in the streets and insult them at the moment. Then, in men, the notion that women are second-class people begins to disappear.
Families raising girls need to instill in their children a strong sense of self-respect and inviolability. Because a self-respecting woman will never allow her rights to be violated. It also reduces the number of cases of injustice, such as the simple apology and reconciliation of individuals who have oppressed and abused women. It is also necessary to support women's love for science from a young age. Why is the concept of "support" used instead of "awakening" love ?! The reason is that when we were all in primary and secondary school, we witnessed that girls approached the tasks responsibly and performed better than boys. If parents supported their daughters' desire for education and future careers, there would be more female students in universities and more women working in government. (For example, out of 1215 students admitted to Tashkent State Law University in 2019, only 333 are female students.) This, as in the case of the school above, is likely to lead to an increase in responsible staff and efficiency in government agencies.
And our most painful point is the attitude of our people towards the
female person. Unfortunately, this factor is also not enviable. In the minds of our people, there is a stereotype that a woman is only sitting at home, raising her children, doing housework, having weddings, having only different luxuries in her mind, not being able to go beyond a narrow circle, and being a narrow-minded person like this circle. In their opinion, the ideology that public affairs and science are unique to men is rigid. When such people are asked, "Why do you think so?", Almost everyone attributes the issue to our national mentality, traditions or religion. However, many of them forget our mentality, our traditions, when we need to respect women, not put pressure on them, not hit or insult them. Many do not think about our religion at a time when we should not betray anyone's rights, not deceive others, and be fair to our people. This is exactly what thinking, that is, religion, national mentality and traditions should take its rightful place and stop justifying its actions. The solution lies in education and upbringing, which is our painful place.
These ideas and opinions are, of course, based on subjective
opinions and cannot be viewed as solutions to all problems. By the way, no matter how many normative documents the state develops, no matter how many coercive and influential measures it is, it is difficult to achieve great success in gender policy. To do this, we must first change the worldview of the people. When every member of the nation contributes, albeit in a small way, the struggle for gender equality can bear fruit.
In conclusion, it should be noted that people have become accustomed to looking at the concept of equality only in terms of form. As a result, the idea is emerging in the minds of people that women should participate in construction work like men, work hard, and serve in the military on an equal footing with men. Some primitive thinkers are likely to use these ideas as a counterargument against gender equality policies. We should keep one idea in our mind. When we interpret the concept of equality separately from the norms of justice and morality formed in society, the result is that there will be more injustices than there are now.
REFERENCES:
1. https://www.economist.com/finance-and-economics/
2. https://lex.uz/docs/4494849
3. https://lex.uz/docs/4494709
4. https://lex.uz/docs/4777291
5. United Nations Development Programme: The Gender Equity Index 2019. (https://hdr.undp.org/)
EVOLVING ROLE OF LOCAL GOVERNMENT IN SUPPORTING TOURISM DEVELOPMENT IN UZBEKISTAN
Olimova Zarina Baxodirovna,
Lawyer
E-mail: zarina.ziyo14@mail. ru
A R T I C L E I N F O
A B S T R A C T
Keywords: Local government, tourism industry, local tourism, tourism product, investment, tourism legislation.
The article analyzes importance of local government in tourism development especially, relationship between local authority and tourism industry. Also discussed top issues of supporting tourism development in the country.
INTRODUCTION
In recent years reforms in the Republic of Uzbekistan demonstrate that tourism sector is one of the strategic sector of national economy which in the long term will help to solve such important social and economic tasks as job creation, diversification of the economy and accelerated development of regions, increasing incomes and quality of life of the country's population.
The aim of this paper is to gain a better understanding of the evolutionary processes of tourism
development towards sustainability in country according to the main stakeholders: local government, tourism enterprises and local community, focusing mostly on the challenges and weaknesses that expand within and beyond the boundaries of local government.
The research data-gathering methods: literature reviews, secondary data and semi-structured interviews are all used to gain insights into the core research questions. Each method feeds into
and is strengthened by the others and their combination.
The results of this study point out the fact that there are wide ranges of factors that constrain tourism industry from adopting more sustainable tourism practices. All of these factors play a crucial role in materialization the actions of all stakeholders in relation to sustainable tourism principles.
Nowadays history of tourism development can be divided of Uzbekistan into 3 stages. First stage covered 1992-1999 years. While, in this period national company "Uzbektourism" [1], which coordinated tourism activities in the country has been established. Further Uzbekistan joined to UNWTO in 1993 [2], which was one of an important steps towards to developing international tourism. As a part of this, in 1994 it was adapted Samarkand declaration, a long "Silk road" with participation of 19 countries of the World [3]. During that period foundation of tourism industry has been created.
Second stage has started with adoption of law of the republic of Uzbekistan in 1999 [4] and continued till 2016. During that time it was created a base of tourism legislation. Government programs has been adopted to develop this sphere.
Tourism infrastructure also has been formed during this period.
Third period characterized by reformation of the sphere. The main change was reorganization of "Uzbektourism" into state committee of the Republic of Uzbekistan for Tourism Development in 2016 [5]. The State Committee of the Republic of Uzbekistan for Tourism Development was organized in order to identify and coordinate the implementation of targets and priority areas. We can say that this stage has already become an important time for industry. During this short time a lot of works have been done and lot of tasks have been resolved. If we look at it from point of view of legislation then we reveal that strong foundation for further reform has been created. Simplification of visa procedures and registration is one of the examples for that.
That facts show that tourism sphere has its own developed way in the country which improved day by day.
MAIN BODY
From first day of election the president of Republic of Uzbekistan Sh.Mirziyoyev paid attention to modified industry.
In particular, on August 16, 2017, President of Uzbekistan Shavkat Mirziyoyev signed a
resolution "On priority measures for development of tourism sphere for 2018-2019 [6] aimed at improving regulatory and legal regulation and development of international cooperation in this area, ensuring availability of traveling to Uzbekistan, development of tourism and related infrastructure in all regions of the country, diversification of the tourist product and creation of new tourism facilities, as well as the promotion of the national tourist product in the domestic and foreign markets.
Decree of the President of Uzbekistan dated December 2, 2016 "On measures to ensure accelerated development of the tourism industry of the Republic of Uzbekistan" defines the main tasks and priorities of the state policy in the sphere of tourism, including giving for tourism the status of a strategic sector of the economy and making this industry a powerful tool for sustainable development with a purpose to widely propagandize tourism capacity in areas, to create convenient conditions for visitors [7].
Besides, to solve problems in the sphere and increase responsibility of local government to fulfill their tasks President of our country Shavkat Mirziyoyev has signed the decree on « On measures to further increase the responsibility of local executive authorities in the
development of tourism », which defines role of local authority for supporting industry [8].
Also, on the article 100 of our Constitution it was defined that joint conducting of the local bodies of authority shall include:
matters of economic, social and cultural development within their territories. Accordingly, we can say that local government also responsible for improving tourism because this is one of the significant element of economy of the country.
We also know that one of the developmental duties of municipalities is to structure and manage their administration, budgeting and planning processes, to give priority to the basic needs of the community, and to promote the social and economic development of the community [9].
While investigating we must study two issues: Impacting of tourism sector for development of local government management and the impotency of the government in the development of tourism sphere. After that we can improve other concepts which relates to this.
Let discuss the first, as it known that tourism is one of the developing branches of the economy in our country. As Prezident Sh.Mirziyoyev noted, "concrete measures on increasing contribution
of tourism to Uzbekistan economy, agitation of historical and cultural values as well as reinforcement of hard currency reserves should be intensified" [10]. Obviously that tourism plays key role on economic social and cultural and environmental progress of the regions. If widely consider this issue we can understand importance of tourism to life expectancy in regions.
In addition, it can really change economic environment of regions such as employment and attraction of investment to promote local handicraft, which is very necessary for improving life welfare of population. It proves high impact of local authority to supporting tourism at localities.
Territorial local authorities (district and city councils) have two principal functions relating to tourism: the 'enablement' of tourism development, and the management of tourism's effects [11].
To enable tourism development, territorial local authorities:
• Support economic development initiatives, such as funding for regional tourism organizations, preparing business feasibility studies,
• Help to develop local facilities and attractions, such as zoos, art galleries, parks and reserves;
• Promote events, such as cultural or sport festivals.
To manage tourism's adverse social and environmental impacts, territorial local authorities:
• Regulate tourism development, for example, setting environmental, health and safety standards,
• Plan utilities, such as transport networks, waste management, and sewerage, and,
• Monitor tourism development and trends, such as host satisfaction surveys and environmental monitoring.
However, the local government sector has traditionally played an important role in supporting tourism development of local areas. This included the provision of infrastructure, the development of tourist attractions and experiences, support for festivals and events and the implementation of tourist promotion plans. Tourism plans, policies and development objectives are core elements of the Country and City Development Plans. Importantly, the sector mobilized a network of stakeholders including agencies, community groups and the private sector to invest in and promote their local tourist offering. These activities were driven by the ambition of each local authority to harness the development
opportunity of areas throughout Country as places to live in, invest in and visit in a sustainable way [12].
By improving the activity of the local government in developing tourism subject of private sector becomes more important and important. Creation of new jobs, protection and restoration of historical objects, education of young people by developing local tourism, protection of ecological environment and organization of ecological zones, Support of handcraft, developing nono-technology and architecture are the consequences which might be coined.
Governments nevertheless have a critical role in creating the context and stimulating actions to ensure that tourism is more sustainable in the future. Local government has become an important arena for discussions about the interpretation and implementation of sustainable development (Commonwealth Department of Environment and Heritage 2004; UNEP 2003). Discussions at international and national levels reinforce the importance of local government because it is at this local level that local policy debates unfold and decisions about resource use are made.
Governments should provide an environment that enables and encourages the private sector, local community, tourists and other stakeholders to respond to sustainability issues. This can best be achieved by establishing and implementing a set of policies for tourism development and management, drawn up in concert with others. The principles of sustainable development put emphasis on local determination and implementation of policies and actions. This should be placed within a supportive national policy framework.
Indeed, it is often local governments which assume much of this responsibility as they are closest to many of the problems associated with tourism development (Aronsson, 2000) and they control most of the development planning aspects associated with tourism (Dredge & Jenkins,2007) [13].
Local authority gets fast information about the problems that community faces. In addition, locality knows in details about natural resources and human capital so through the careful assessment it can plan the future to help the community in employment, local business, infrastructures etc.
Local governments are face with a range of challenges to the
effective planning and management tourism with other functions and of tourism at their destination level. activities of local government. The most important challenge is that Table indicates some areas of of integrating the management of local government responsibilities as
they relate to tourism. Local government responsibilities relating to tourism [14]
Local government roles and responsibilities and areas of planning and policy development Potential Influence on tourism
Infrastructure provision and maintenance Transport infrastructure may shape access to the destination and travel patterns within the destination. Basic infrastructure capacity may shape the destination capacity to absorb tourist and may limit development
Land use planning Development assessment and strategic land use planning influences the built character and spatial integration of the destination
Environmental management Protects and preserves unique environmental features of a destination and manages visitor pressures on natural resources
Open space planning and management Protects and conserves open space, influences the character and amenity of the destination and helps create a 'sense of place'.
Public health and safety management Protects and enhances visitor satisfaction, destination image and quality
Community development Encourages a community supportive of tourism activity and enterprise
Local economic development Encourages synergetic economic activity, the development of
appropriate tourism business and support services.
Education, training and employment Influences quality in the delivery of tourism services and facilities.
Tourism promotion and marketing Fosters branding and destination image development.
Arts and cultural development Encourages the development of unique and positive sense of community and belongingness attractive to tourism
Human services Encourages positive attitudes and improved service delivery
The findings from this qualitative research aims to gain a better understanding of the role and responsibilities of the local government in Uzbekistan.
CONCLUSION
Reforming the activities of local executive authorities in the field of tourism will lead to the following results:
First, the development of the tourism industry will lead to an increase in the number of small business entities in the private sector;
Second, the emergence of new jobs will lead to an increase in employment;
Third, it will contribute to the preservation and restoration of existing historical sites;
Fourth, the role of local tourism in educating the younger generation,
especially in expressing their national identity, is important;
Fifth, it will pave the way for improving the environmental condition of the regions and creating eco zones;
Sixth, the further development of the national economy will lead to the support of various forms of handicrafts;
Seventh, it will lead to the introduction of innovative nano technologies in our country;
Eighth, it will contribute to the improvement of cultural ties between peoples, nations and states.
Despite the high tourist potential of the country, some factors are resulting low level of positive impact on the economic development of the Uzbekistan. These problems should be explored by next papers.
REFERENCES
1. https://www.uzbekistan.de/en/nachrichten/nachrichten/national-company-uzbektourism-celebrates-23-years-anniversary
2. https://www.uzdaily.uz/en/post/29084
3. https://unesdoc.unesco.org/ark:/48223/pf0000159189 (The Silk Roads Project: Integral study of the Silk Roads: Roads of Dialogue, 1988-1997);
4. https://cis-legislation.com/document.fwx?Rgn=840 (law of the republic of Uzbekistan of August 20, 1999 № 830-I ABOUT TOURISM (as amended on 18-04-2018);
5. https://lex.uz/docs/4613710
6. https://www.uzdaily.uz/en/post/40491
7. http://www.uzbekembassy.in/tourism-in-uzbekistan-is-the-dynamically-developing-sector-of-the-country/
8. https://www.uzdaily.uz/en/post/57354
9. http://constitution.uz/en/clause/index
10. http://www.uzbekembassy.in/tourism-in-uzbekistan-is-the-dynamically-developing-sector-of-the-country/
11. Cameron A.C.,Memon Ali, Simmons D.G. Evolving Role of Local Government in Promoting Sustainable Tourism Development on the West Coast// Tourism Recreation Research and Education Centre (TRREC) Report № 28.2001.7.-p.64
12. https://www.lgma.ie/en/news/role-of-local-government-in-tourism.pdf
13. Brokaj R. Local government's role in the sustainable tourism development of a destination// European Scientific Journal November 2014 .p-112
14. https://www.researchgate.net/publication/292463544_The_role_of_local_governme nt_to_facilitate_and_spearhead_sustainable_tourism_development
THE DEVELOPMENT OF GENDER EQUALITY IN UZBEKISTAN AND THE GENDER EQUALITY REFORMS OF LAST YEARS
Ubaydullaev Saydullo Abdukakhar ugli,
Student of Tashkent State University of Law E-mail: s. a. ubaydullayev@gmail. com
A R T I C L E I N F O
A B S T R A C T
Keywords:
the concept of gender equality, gender Islam, equality of rights of women and men, ensuring gender equality, the role of women in the life of society, the right of women.
The article provides detailed information on the legal basis of the establishment of gender equality in the Republic of Uzbekistan, its advantages, the reforms carried out in the years of development and the last, as well as the scope of work carried out to ensure gender equality from the first days of independence to the present day and expand the legal opportunities of all.
Since the first days of independence, the Republic of Uzbekistan has supported the democratic principle and joined nearly 70 major international documents on the provision of human rights. These are the Universal Declaration of human rights, The Convention on the Elimination of all Forms of Discrimination Against Women, the Millennium Development Goals and others. In addition, the Republic has
created a completely new institutional environment for the implementation of a constitutional print-out on the equality of women and men in the life of society, which includes: committee of women of Uzbekistan (1991), The Institute of the representative of the parliament for Human Rights (Ombudsman), the commission for the observance of constitutional rights and freedoms of citizens under the representative of the Supreme Assembly for Human
Rights (1995). In order to coordinate the activities of all state and nongovernmental organizations related to the protection of human rights was established the National Human Rights Center of the Republic of Uzbekistan (1996). Furthermore, to study the current legislation, its compliance with international norms and standards in the field of human rights, to develop proposals for the implementation of international legal norms in the field of human rights to the current national legislation, to conduct scientific expertise of draft laws, to prepare proposals for plans and programs related to the activity of creativity was established the Institute for monitoring current legislation under the President of the Republic of Uzbekistan.
It is worth noting that almost all acts created to this day in our country have ensured equality of rights of women and men, including:
- as stated in Article 18 of the Constitution of the Republic of Uzbekistan "all citizens of the Republic of Uzbekistan have the same rights and freedoms and are equal before the law, regardless of gender, race, nationality, language, religion, social origin, personality, personal and social status" [1]. Our Constitution, which is considered to be the main act, guarantees for each person a whole set of personal,
social, political, cultural and economic rights in the International Convention on Human Rights. In our constitution, the inviolability of rights and freedoms to every person is strongly stated, no one has the right to limit them.
The Family Code of the Republic of Uzbekistan (1998) strengthens the equality of personal and property rights of women and men in marital relations (Article 2) and establishes the obligations of the spouses in the field of child upbringing and care, as well as other family matters (Article 21) [2].
Considering the possibility of education as a decisive factor in expanding the rights and opportunities of women and increasing their well-being, in the field of professional education and development of their abilities, we will witness that the right to education in the Republic is guaranteed by the Constitution of the Republic of Uzbekistan for all citizens regardless of gender (Article 41).
Equal rights of women and men on education are also established by the law of the Republic of Uzbekistan "on education", and on physical development and sports - the law of the Republic of Uzbekistan "on Physical Education and sports"(Article 2).
In order to further expand the participation of women in the decision-making level, decrees of the president of the Republic of Uzbekistan "On measures to increase the role of women in the state and social construction of the Republic of Uzbekistan" dated March 2, 1995 and "On additional measures to support the activities of women in Uzbekistan" dated May 25, 2004, and In the Labor Code of the Republic of Uzbekistan (1995) in relation to the right of women to Labor, a protectionist approach is used. The employer does not have the right to give a woman a refusal in employment because of her pregnancy or her many children. Some articles of the code contain norms aimed at protecting women from working in harmful or severe conditions, as well as other benefits during pregnancy. It is strictly defined as [3] their labor rights are kept to an extent of relevance. The legislation of the Republic of Uzbekistan provides for measures aimed at preventing violence against women and girls. The Criminal Code of the Republic of Uzbekistan enshrines various punishments for violent acts committed against women (articles 103, 115, 117,121, 136). All normative and legal acts of the Republic of Uzbekistan are adapted to the Articles of the Constitution and
do not have any norms that discriminate women. Direct or indirect violation or restriction of the equality of citizens [4] is punishable by the Criminal Code of the Republic of Uzbekistan (Article 141). Thus, in the years of independence, a progressive and reliable basis has been created for the implementation of state policy towards women and men aimed at ensuring a constitutional print-out on equality of women and men in the legal, organizational, financial-economic, social and other spheres at the level of legislative and executive bodies in the Republic.
In order to organize systematic work on the consistent implementation of Sustainable Development Goals, the resolution of the Cabinet of Ministers "on measures for the implementation of national goals and objectives in the field of sustainable development of Uzbekistan for the period up to 2030 years" was adopted. The 5th objective of this sustainable development strategy is "to ensure Gender equality and expand the rights and opportunities of all women and girls". In particular, the following is stated in it:
> elimination of all forms of discrimination against women in all places;
> disposing all forms of violence against women, including trafficking in persons, sexual exploitation and other forms of exploitation;
> early termination of marriages and rape marriages;
> recognizing and appreciating non-paid labor for the maintenance and maintenance of households by providing social protection systems of services, infrastructure and Public Utilities, encouraging the principle of general responsibility for Family Maintenance, taking into account national conditions;
> to provide equal opportunities for women and girls to participate in all stages of political, economic and social life, as well as to be leaders in decision-making;
> to provide general use of health care services to provide general medical and sanitary assistance in the field of preservation of reproductive health;
> broadening programs that support women in their exercise of their rights and interests in the social and economic sphere;
> enhancing more active use of high-efficiency technologies, in particular information and communication technologies, in order to promote the rights and opportunities of women and girls;
> full integration of the principles of gender equality into the process of engagement in the adoption of state programs at various stages of governance. [5]
To fulfill these duties means the responsibility of all state bodies and organizations, institutions, as well as public organizations of State importance. In the "strategy of action on five priority directions of development of the Republic of Uzbekistan in 2017-2021", among the priority directions of development of the social sphere, it was noted the necessity of increasing socio-political activity of women and girls, their position in the management of the state and society, ensuring employment of girls graduating from the women's professional. Also the Coordinating Council on the implementation of national goals and objectives in this area has been established. As a result of the reforms carried out to ensure Gender equality changes have also taken place in our national legislation. In particular, on September 2, 2019, was adopted the act "On guarantees of equal rights and opportunities for women and men". According to the act, the basic principles for ensuring equal rights and guarantees of opportunities for women and men are as follows:
Legitimacy, democracy,
equality of women and men; nondiscrimination on sex; openness and transparency have been firmly defined[7]. Although Uzbekistan has started the adoption of gender equality act much later than other countries.
It should be note that the adoption of the act on gender equality was a big and important step for Uzbekistan and society. For the first time by act, in our national legislation has been described the concept of "gender". According to the act, gender is a social aspect in which relations between women and men manifested in all spheres of life and activity of society, including politics, economy, law, ideology and Culture, Education, Science. The lexical meaning of the concept of" Gender "in Latin "genesus", that is, "sex". [8]
If biological sex divides people into women and men, gender is the focus of women and men to separate their place in society. The fact that women and men in the society can find and determine their place, the state creates the same conditions and opportunities for them, serves as the basis for ensuring gender equality in public.
In our country, a new direction in the field of law and legal creativity-gender - legal expertise has been
introduced in this high legal force legislation aimed at ensuring equal rights and opportunities for women and men. This is an analysis of the compliance of gender-legal expertise with the normative-legal documents and its projects with the principles of ensuring equal rights and guarantees of opportunities for women and men. In accordance with Article 4 of this law, principles such as legality, democracy, equality for women and men, non-discrimination on sex, openness and transparency mean the basic principles of ensuring equal rights and guarantees of opportunities for women and men [9].
The powers to conduct Gender-legal expertise imposed on all state bodies and other organizations. Each of them, proceeding from the direction of its activities, analyzes the normativelegal documents and its projects and accepts the conclusion of genderlegal expertise. In addition, the determination of the issue of maintaining gender statistics is one of the main norms reflected in this act. According to the norm, the state statistical bodies on the basis of gender indicators collect statistical information that reflects the state of women and men in all spheres of society's life, process, store, analyze and publish it. In order to prevent gender discrimination of women and
girls, the commission on the issues of ensuring gender equality was established in the Republic of Uzbekistan. Its main task is the implementation of a single state policy in the field of ensuring equal rights and opportunities for women and men. It provides information to the "Oliy Majlis" every year on the development and implementation of state programs, National Action Plans and strategies in this area. It carries out cooperation with international organizations, relevant bodies of foreign countries in the field of ensuring equal rights and opportunities for women and men in compliance with international standards in this regard.
Another notable aspect of the act is that it contains norms for maintaining gender equality in ensuring the political, social and economic rights of people. In particular, in the field of public service, requirements were established such as ensuring equal rights and opportunities for women and men, for example, allowing the use of temporary special measures to ensure the implementation of gender policy, which stipulates a quota system for the recruitment of employees of the same sex, taking into account the position categories of employees in the public service, In addition, the political parties provided
for the provision of equal rights and opportunities for women and men in the nomination of candidates to the Legislative Chamber of the Oliy Majlis and the deputies of local councils. After all, according to articles 70 and 91 of the Electoral Code, the number of women should be at least thirty percent of the total number of candidates for deputies specified by the political party [10].
This norm fully corresponds to the basic principles of ensuring equal rights and guarantees of opportunities for women and men. By act, in the economic sphere, guarantees of equal rights and opportunities for women and men are also established, according to which, regardless of the form of state bodies and property, the leaders of the organization are obliged to ensure equal access to the resources of society. The state provides equal rights and opportunities for women and men in carrying out entrepreneurial activities.
By the way, the Prohibition of discrimination on sex in the use of legal rights and Freedoms does not apply to some social relations. Indeed, the establishment of differences in the regulation of reproductive health in the protection of women and men's Labor, the provision of recommendations on
professional skills, the order and conditions of detention, the storage of punishment in places of execution, as well as other measures of legal effect are not considered discrimination on sex.
If we look at the statistics, in our country in 2017 year girls accounted for 50% of primary education, and in secondary school-54%. According to statistics in 2018 year, the number of women in higher education has increased and 40% of students are women, which means 36% more than the figure in 2011 year. The literacy rate of women constitutes 99.98%, that is, one of the highest in the world [11]. Uzbekistan is worth it to be proud. However, this does not necessarily mean that we have achieved the full result.
In our country, the implementation of the above work is on the same:
> this is a systematic and continuous process - the formation of a culture of equality of men and women in cooperation with the general public and civil institutions of Uzbekistan;
> ensuring gender equality in the joint and co - operation activities of all spheres of society-state structures, public organizations, business entities of the OIC, trade
unions and broad layers of the population;
> change of social and cultural patterns of women and men's behavior;
> elimination of old attitudes toward the role of women and men in society;
> creation of the information base of gender-educated students necessary to organize the targeted activities of all layers of society;
> at the level of the regions, it is necessary to conduct regular gender analysis and monitoring of the gender situation, as well as all series of gender issues.
In conclusion, the international experience shows that gender reform for our state, the implementation of women's rights and opportunities, serves as an important factor in solving many important issues our country faces. As a result of such reforms, sustainable growth rates of the economy are ensured in the relevant countries, the creation of a highpotential additional labor force, the decline in unemployment rates, the elimination of social inequality, the reduction in the number of population in need of social protection, the strengthening of social stability and other solutions to life problems have been achieved.
REFERENCES:
1. Constitution Of The Republic Of Uzbekistan
2. Family Code of the Republic of Uzbekistan
3. Labor Code of the Republic of Uzbekistan
4. Criminal Code of the Republic of Uzbekistan
5. "On measures of implementation of national goals and objectives of Uzbekistan in the field of sustainable development in the period up to 2030"
6. https://atm.andmiedu.uz/2017-2021-yillarda-ozbekiston-respublikasini-rivojlantirishning-beshta-ustuvor-yonalishi-boyicha-harakatlar-strategiyasi/
7. https://m.kun.uz/uz/news/2019/09/03/prezident-xotin-qizlar-va-erkaklar-uchun-teng-huquq-hamda-imkoniyatlar-kafolatlari-togrisidagi-qonunni-imzoladi
8. http://uza.uz/uz/society/gender-tenglik-ta-minlanadi-17-09-2019
9. "On guarantees of equal rights and opportunities for women and men" act.
10. Election Code of the Republic of Uzbekistan
11. https://stat.uz/uploads/docs/talim_dekabr_2018_uz.pdf
12.00.03 - Civil law. Employing law. Family right. International
private law
INVALIDITY OF AGREEMENTS IN CIVIL LAW - AN ANALYSIS OF THE EXPERIENCE OF UZBEKISTAN AND JAPAN
Abduvaliev Maksudjon Abdurashid ugli
Lecturer of Administrative and Financial Law Department
of Tashkent State University of Law E-mail: [email protected]
A R T I C L E I N F O
A B S T R A C T
Keywords: agreement, invalidation of agreements, internal will, external expression, fraud, coercion, rules of ethics, mutual disproportion, deal.
The article focuses on the grounds for concluding agreements between the parties on the basis of civil law and their invalidation. Attempts were made to clarify the notion of invalidation of agreements in Uzbekistan, the grounds for it and the analysis of the current situation, as well as the contentious aspects of the issue. At the same time, the Japanese legal system was studied, the grounds for invalidating of the agreements were studied and made relevant recommendations.
In recent years, in Uzbekistan where based on a market economy have been concluding various agreements between the parties and it go up day by day. Unfortunately, the unilateral cancellation of the contract by the parties and it have been leading many legal problems in
practice. Of course, this creates a number of difficulties for the parties of the contract, hindering their further activities. For example, the most common legal problem is the invalidation of agreements. Because, as the consequence of agreements considered invalid and it had no legal
force from the moment when it drafted. As a result, the parties are unable to find an optimal solution to the problem and its damage that has arisen. This research aims to study the concept of agreements and the circumstances that make them invalidity.
For beginning, we study the legislation of the Republic of Uzbekistan. According to Article 101 of the Civil Code of Uzbekistan, the agreement refers to the actions of citizens and legal entities aimed to the establishment, modification or abolition of civil rights and duties [1].
The reason for concluding agreements between the parties has a significant role in the process of clearly defining their rights, obligations and resolving disputes. Furthermore, agreements mainly made in orally or in writing forms, depending on the wills of the parties in the process of concluding. Whether the investor or other entity spends money as a party, it enters into contract to protect its rights and to get back the money it has invested in the event of future risk. Not all agreements are concluded base of the legal provisions. If contract declared invalid in Uzbekistan, the person's ability to defend his rights and get his money back is very low. As a result, people are losing trust in the laws and the business at risk.
Of course, the law system should clearly define the invalidity circumstances of agreements. According to the Civil Code of Uzbekistan, agreements are invalid in the following situations:
1) Not to draft in accordance of the legislation;
2) Minors under 14 years;
3) Minors from 14 to 18 years;
4) A citizen who declared incapacitated;
5) A citizen with limited capacity;
6) A citizen who does not understand the importance of their actions or cannot control them;
7) An agreement made under the influence of error;
8) Deception, violence, intimidation, malicious collusion of one party representative with the other party, 9) Designed for counterfeiting and fraud;
10) An agreement that goes beyond the legal capacity of a legal entity [2].
Notwithstanding, in recent years, the number of cases of invalidation of agreements have increased and causing damage to the parties in the Republic of Uzbekistan. In accordance with the requirements of the legislation, each of the parties must return to the other party everything received under the agreement and it is not possible to
return the received thing in its original form - to pay its value in cash. However, it is not possible to get back what was given or money in all cases of invalid agreements. As a result, the party faces economic hardship without being able to cover its losses.
The following example is one of the widespread in Uzbekistan.
The Republic of Uzbekistan is an agro-industrial state and agricultural land is vital for economic performance. During 2018-2019, in more than 23,000 cases, 3,900 hectares of agricultural land, on the base of the local governments decisions were started built real estates by the population. Later all real estates demolished by the state [3].
Because, the decisions taken by the local governments which accepted several years ago were found to be illegal. Thereafter, citizens or investors whose took unknowingly and second or third party real estate holders suffered from it. In such proceedings, the ignorance of the parties or the rights of a third party did not take into account. All proprietors equally damaged in this case. Because the authorities did not cover to anyone the caused damage.
Studies in this field have been shed light on by a limited number of
researchers, which requires an urgent and comprehensive research. According to Sh. Rahmonkulov and B. Topildiyev, after the agreement was declared invalid, all actions should be reversed, the given things should be returned. Unfortunately, in practice, the chances of a full refund of the goods and funds given in the illegal agreements with a non-party are very low [4].
The fact that the parties are unaware of the invalidity of agreement or do not take into account the protection of the rights of the third or subsequent parties in legal acts of Uzbekistan, this process shows us that our scientific work is very relevant. The legal system of Japan, which has been developing for many years, pays special attention to the invalidation of agreements and the protection of the interests of parties. We believe that Japanese experience is also very essential in resolving legal issues arising invalidity of agreements in Uzbekistan. Civil law has a special place in invalidating transactions in Japan.
Japanese law draws attention to the invalidity (M^) of the agreements and the
balance between the internal (m
will and external expressions of parties [5]. The
imbalance between internal will and external expressions have been called an error (igft) . In Japanese Civil law, an agreement that is contrary to the established rules of morality in society ,
humor OM^) , misrepresentation ,
scam (ff^) , compulsion are the basis situations for invalidation [6].
In Japanese law, the most considerable feature is that the parties internal will and external expressions take into account when declaring agreements invalid. Knowing one of the parties in advance that the agreement is not valid, which can help to protect the rights of the opposite side. It also stipulates that unknowingly entering into an agreement with third parties remain objects on that side. In this process, we can see that the participation of the second and third parties protected in the process of invalidating of transaction.
In Civil law system of Uzbekistan, it does not matter whether the parties know or not in advance that the agreement is not valid, or whether they have entered into agreements with third and fourth parties when all subjects are similarly harming. The victim can be an investor, an entrepreneur or simply a citizen.
In conclusion, we believe that reforming the process of invalidity of agreements in Uzbekistan will effect to increase the confidence of investors, entrepreneurs or citizens in Uzbekistan. Our topic and experience of Japan law system can lead to the correct conclusion of contracts, the payment of damages and the reliable protection of the rights of third parties. It should be paid special attention to the protection of the rights of both second and third parties in the process of invalidating the agreements in Uzbekistan and it is necessary an amendment of the legislation.
REFERENCES:
1. https://www.lex.uz/docs/111189?otherlang=1
2. https://www.lex.uz/docs/111189?otherlang=1
3. https://www.gazeta.uz/oz/2020/02/24/land/
4. http://files.tsul.uz/student/10.pdf
5. http://www.kokusen.go.jp/wko/pdf/wko-201906_16.pdf
6. https://www.foresight.jp/takken/column/indication-of-intention/
ACTUAL PROBLEMS OF LEGISLATION OF THE DEVELOPMENT OF INTERNET INSURANCE IN UZBEKISTAN
Eshchanova Dauletbike Ametbekovna
Lecturer of Business law Department of Tashkent State University of Law _E-mail: [email protected]
A R T I C L E I N F O
A B S T R A C T
Keywords: insurance, Internet insurance, investment project, investments, legislation of the Republic of Uzbekistan, economy, legal reform.
This article will explain one of the new types of insurance called Internet insurance and the need to introduce it into the insurance system of Uzbekistan. Below paragraphs will propose to make amendments into the investment legislation of Uzbekistan regarding the use of Internet
INTRODUCTION
The current stage of development of the Republic of Uzbekistan is characterized by the setting of national socio-economic proposition, the solution of which should be carried out on the basis of fundamental reforms and increasing the efficiency of the state's activities in various spheres of the
economy.The primary goal of this legal reform is to create an effective system of public administration, as well as financial reform, which provides for the transition from managing budget expenditures to managing results.
For the effective implementation of fundamental transformations aimed at ensuring the economic
development of society, it is profoundly important to attract additional financial resources in the form of foreign investments. It is the activation of investment attraction that necessitates the creation of an adequate system for protecting the rights of investors. In particular, legal scholars pay attention to the fact that foreign investors, as well as local entrepreneurs interested in attracting foreign capital, are trying to create a system of additional guarantees that protect the rights of investors. One of the elements of the additional guarantees is a system of insurance for non-commercial risks [1].
MAIN BODY In the modern market economy, the role of insurance is to ensure the continuity, security and balance of the manufacture. Insurance helps to optimize the macroeconomic proportions of social reproduction. Precisely, due to the ability of insurance to influence
macroeconomic processes in developed countries, it is considered one of the strategic sectors of the economy. In addition, an important strategic factor is also the huge investment resources of insurance companies (especially, in life insurance), which largely predetermined the macroeconomic proportions of the development of the leading countries of the world.
Currently, experts distinguish four main functions of insurance: the function of compensation for losses, social, investment and preventive. [2].
From the point of view of foreign experts, maintaining the stability of the functioning of insurance companies, especially during periods of crisis and economic instability, requires the development of new sales channels for insurance products. They believe that the use of the potential of information and computer technologies and information networks existing on their basis can become a good help in expanding the insurance market [3].
An analysis of the difficulties of transitioning to the Internet insurance market shows that large companies can easily enter this market, but some insurers believe that the costs of developing this segment will take too long to pay off. Further gaining of experience in the field of Internet insurance will significantly simplify access to the insurance market for any company. The next generation of online insurers taking advantage of e-commerce will bring serious competition to large companies. Internet insurance greatly reduces the geographic scope of markets, makes it unnecessary to open expensive sales offices, reduces
labor costs, increases interest in investor insurance, and makes insurance more accessible in all parts of the world for any company. The development of the Internet not only in large cities and in rural areas, as well as the improvement of legislation in the field of e-commerce, can contribute to the development of this type of insurance. During the pandemic, a more active digitalization of the economy has become very relevant, which allows capital turnover at a distance quickly and, which is quite important, in a contactless way. It can maintain a safe level of investment and prevent the spread of coronavirus infection include such a new insurance product as Internet insurance of investment activities. The transfer of organizational aspects of the insurance business to the Internet provides potential investors with a number of new opportunities: 1) to compose, without leaving home, an idea of the insurance market and insurance services; 2) to use online consultations on various insurance issues; 2) to submit an application for the conclusion of an insurance contract in electronic form; 3) to draft an insurance contract and pay an insurance premium via the Internet; 4) get online support for the insurance contract.
One of the main obstacles to the widespread use of Internet insurance is the insufficient development of the insurance system in Uzbekistan and the lack of confidence of local entrepreneurs in financial institutions. The new types of insurance can be much more easily disseminated with the help of insurance agents who are able to explain the merits of the insurance product and assure a potential policyholder of their honesty. In the case of such an insurance product as Internet insurance, it will be necessary to overcome obstacles only by modernizing technical means, as well as creating a full-fledged virtual office of the insurance company on the Internet. The websites of most insurance companies in Uzbekistan perform only informational functions, posting on their pages mainly data on the insurance company and the insurance services it offers, sometimes a description of their activities. Hence, most of the sites of local insurers cannot be called full-fledged Internet representations. Not many companies are trying to transform an ordinary information site into a full-fledged virtual office of insurance. From the point of view of foreign experts in the field of application of new insurance products, first of all, this is due to the
restrictions imposed by the insurance service itself. Formalizing an order for insurance, concluding a contract - usually this requires the interactive participation of both parties [3]. However, local insurance companies are trying to organize their Internet offices.
CONCLUSION Thus, with the possibilities of developing Internet insurance, the insurance market of Uzbekistan is in the process of moving to a qualitatively new stage of its development. Despite the fact that insurance in Uzbekistan has national specifics, the directions of its development correspond to generally recognized world standards. Further improvement of the regulatory and legal framework
for insurance of investment activities involves the development and implementation of measures aimed at improving and developing insurance and investment legislation of the Republic of Uzbekistan, creating a legal basis for the implementation of full-fledged Internet insurance. In this regard, it is necessary to supplement the investment legislation with norms providing for the liability of insurance organizations for the fulfillment of their obligations under the contracts concluded online. One of the main future goal is that it should be taken account of the maximum development of the existing potential and the creation of its own insurance Internet brands in Uzbekistan.
REFERENCES
1. Brovkina S.S. Legal support of guarantees of foreign investors in the national legislation of the Russian Federation and international private law. Author's abstract. Cand. jurid. sciences. M:., 2005.-P.67-68.
2. Dzhalilov D.A. Analysis of the development of the insurance market in the regions of Uzbekistan // European science no. 8 (30) P. 43.
3. Krasilnikov O.Yu. Krasilnikova E.V. Theory and practice of Internet insurance development // Izv. Sarat. University of Economics. Control. Right. 2015.Vol. 15, issue 3 P. 243.
12.00.05 - Labour law. Law of social Maintenance
EMPLOYMENT RIGHTS AND PRIVILEGES OF PERSONS WITH
DISABILITIES
Khojabekov Muftulla,
Lecturer of the Labor Law Department of Tashkent State University of Law E-mail: [email protected]
A R T I C L E I N F O
A B S T R A C T
Keywords: "persons with disabilities", "subsidies", "annual labor leave", "medical examination", "disability benefits", "individual
rehabilitation program".
This article examines the rights and privileges provided by national legislation for persons with disabilities in employment. A comparative analysis was carried out with the legislation of foreign countries, such as the USA, Russia, Great Britain, Germany and France. The sharp points encountered in practice are touched upon. The results of the analyzes carried out were reflected in the proposal.
Introduction
Persons with disabilities, as a rule, have equal rights and opportunities in the exercise of all rights and freedoms for all citizens, regardless of nationality, race, gender and social origin. [1] However, if you "take off your rose-colored glasses," you will notice that this is far from the case. Today there is reason to state that most countries
have not yet adopted laws regarding the dissemination of information in accessible formats, for example, the reason for the limited access of persons with disabilities to information and communication technologies, health problems of these persons, low level of education
is: [2]
- lack of a sign language interpreter and a limited number of
TSUL Legal Report
books in Braille; sound recordings or sign language; and website accessibility regulations.
- the absence of a single sports complex that could play a significant role in participation in all types of sports competitions;
- a limited quota in universities of Uzbekistan for persons with disabilities. Also among the many obstacles they face in their lives are problems with employment.
E-ISSN: 2181-1024
According to the author of the analytical article "Invisible People," a member of the Buyuk Kelajak expert council, Dilmurod Yusupov, in Uzbekistan in 2017, only 2% of the population were registered as persons with disabilities.
In this graph, you can see reliable statistical data on the disability of the population of Uzbekistan. In order to establish their social status, it is necessary to pay attention to quantitative data.
Volume 1, Issue 1 (2020)
The number of disabled people in Uzbekistan in 2016 (indicators in thousand)
18 12
Number of persons first recognized as disabled
■96
61
Number of persons re-recognized as disabled
■
17
0,4
The number of disabled children under the age of 16 receiving social benefits
150
140
The number of disabled people -from 16-18 years old
And other persons with disabilities
■ Among men ■ Among women
Problem
Currently, there are cases in the country when not only persons with disabilities face difficulties in finding a job, but also the rest of the population as well. Among citizens, discontent often flares up as a result of illegal refusal to hire or illegal termination of an employment contract, or other types of labor disputes. All this, of course, has a
negative attitude, but imagine how a person with a disability feels in such cases ?! Outrageous!
In general, the labor legislation of Uzbekistan does not need radical change or improvement; rather, the question is about the mechanism for implementing the relevant legislative acts. Any normative legal act in the world of work contains such a rule as "creating favorable conditions for
workers", but in fact, in some organizations, the conditions created leave much to be desired. Let us recall, at least, the situation in public places (metro, library, public catering places), where there are no ramps, no elevators, no special toilets for workers with disabilities in wheelchairs.
In sanitary rules and norms, approved by the Chief State Sanitary Doctor of the Republic of Uzbekistan
B.I. Niyazmatov dated June 4, 2009 No. 0266-09 stipulated that entrances to underground transport communications, crossings through highways, metro entrances should be equipped with ramps, and mechanical ladders were installed on internal stairs to provide conditions for disabled people for free access and movement.
A huge number of spectacular cases have been undertaken in Uzbekistan, however, no matter how bitter and painful it may be, we must admit that the most effective measures have been taken only in the last couple of years.
Labor legislation of the Republic of Uzbekistan imposes an obligation on the employer to unconditionally hire persons with disabilities. Perhaps the majority of leaders consider the existence of this norm to be of some kind, punitive, but this is a wrong judgment. The most
striking justification is the Resolution of the President of the Republic of Uzbekistan "On additional measures of state support for public associations of persons with disabilities" dated August 23, 2019 No. PP-4423. This resolution establishes that legal entities, the only participants of which are public associations of persons with disabilities, in the total number of which persons with disabilities make up at least 50 percent and the wage fund of persons with disabilities is at least 50 percent of the total wages fund, are exempt from the calculation and payment of corporate income tax, value added tax and property tax of legal entities.
In addition, let us pay attention to paragraph 3, paragraph 1 of the first part
Article 14 of the Draft of the new edition of the Law of the Republic of Uzbekistan "On Employment of the Population", which establishes the provision of subsidies to organizations that have recruited persons from among socially vulnerable groups of the population in excess of the established minimum quota.
It is no secret that the Government of Uzbekistan approved the draft Law "On the Rights of Persons with Disabilities" for submission to Parliament. This draft
Law is the first adopted document on the rights of persons with disabilities and, in essence, fully complies with the requirements of the UN Convention on the Rights of Persons with Disabilities.
The main objectives of the draft law are to prevent discrimination on the basis of disability, respect the rights and freedoms of persons with disabilities, ensure their participation in public life as full members of society, create a barrier-free environment and their unhindered movement in the physical environment, and ensure full participation in public life.
And so, let's remember what benefits and privileges in accordance with the law are provided for persons with disabilities in the world of work in Uzbekistan;
- in accordance with the Resolution of the Cabinet of Ministers of the Republic of Uzbekistan "On measures to further improve the procedure for establishing and reserving the minimum number of jobs for the employment of persons in need of social protection and having difficulties in finding a job and unable to compete on equal terms in the labor market" jobs for those in need are provided for organizations in which the average number of employees is more than twenty
people. The total number of the established minimum number of jobs in accordance with the decisions of the khokims of districts (cities) cannot exceed 10 percent (including at least 3 percent for disabled people) of the average number of employees in the organization; [3]
- taking into account their age, health status, working conditions, the specifics of labor functions and other circumstances, as well as the terms of the employment contract, a reduced duration of working hours is established without reducing wages (Article 116 of the Labor Code of the Republic of Uzbekistan);
- at their request, an annual basic leave is granted until the expiration
Foreign experience
When employing persons with disabilities, the parties to labor legal relations face certain problems, such as:
the emergence of additional costs in connection with the creation of favorable conditions for them, as well as the need to devote time to their preparation or retraining; [4]
the occurrence of cases of downtime or regress in production arising as a result of failure to meet the deadlines or improper fulfillment of obligations imposed on persons with disabilities; [five]
the formation of an unhealthy work environment due to limited communication skills among persons with disabilities and their difficult adaptability in society. [6]
At the same time, for this category of persons, the understanding of the need for a responsible attitude to work as a possible way of integration into society levels out, which has a positive effect on labor productivity.
According to international legal norms, the policy of states in relation to persons with disabilities should be aimed at preventing infringement of their human dignity and social exclusion, at creating conditions for the equal and full participation of persons with disabilities in the life of society. [7]
In most states, legislation does indeed provide for measures aimed at encouraging people with disabilities to work.
33 mln 66 mln 68 mln
83 mln
146 mln
328 mln
Disability rate of the population
инвалидности
населения; Узб 33 -млн.; 2%
-Процент
инвалидности населения; Вбр. 66
—Мрмц «%■
инвалидности
населения; Фран 68 ■ млн.;П%)цент ■ инвалидности
— населения; ФРГ 83
--млн.; 9% Процент
инвалидности
населения; РФ 146 --млн.; 11% Процент
к 328
млн.; 16%
In this table, you can see the percentage of people with disabilities in the above countries for 2017.
It should be noted that the practice of job quotas for people with disabilities is similar to that introduced in foreign countries.
Country ■ 11 BIH^
ш SIS
Quotes in - 4 - 5 6 3
percentages
Number of employees - 100 - 20 20 20
The labor laws of the United States and Great Britain do not provide for the mandatory employment of people with disabilities in quota jobs. However, the state, represented by their authorized bodies, provides assistance in the employment of Sentence
When hiring persons with disabilities, employers in accordance with Article 80 of the Labor Code of the Republic of Uzbekistan. require the necessary documents, among these documents it is necessary to add other important documents that would be issued by certain organizations. The question arises as to what type of document must also be provided to persons with disabilities in employment and where to get them. For the employer, hiring these persons seems to be part of the losing streak, and for the employee, finding a suitable job is equal to winning the lottery. In order to resolve this issue, it is considered expedient to study foreign experience.
So, in Art. 11 of the Law of the Russian Federation "On social protection of disabled people in the Russian Federation" established a set of rehabilitation measures "Individual program of rehabilitation or rehabilitation of a disabled person." It includes certain types,
persons with disabilities. In particular, in the United States, companies that employ people with disabilities are provided with tax benefits, and employers who refuse to employ a disabled person are subject to significant fines. [8]
forms, volumes, terms and procedure for the implementation of medical, professional and other rehabilitation measures aimed at recovery, compensation for impaired body functions, formation, recovery, compensation for the disabled person's ability to perform certain types of activities [6].
The introduction of this program would significantly ease the situation of both the employee and the employer. Workers are hired with pre-acquired skills, and employers are skilled workers. After the candidate has completed the rehabilitation course, the center, at the request of the employee, issues him a certificate of successful completion of the rehabilitation course.
The primary goals of the program should be set as follows:
control over the establishment in organizations, regardless of organizational and legal forms and forms of ownership, of quotas for hiring persons with disabilities;
search for reserved jobs in the professions most suitable for the employment of persons with disabilities;
monitoring the implementation by organizations of the norm providing for the creation of working conditions for persons with disabilities in accordance with individual rehabilitation programs;
organization of training for disabled people in new professions.
An individual program for the rehabilitation or habilitation of a disabled person is mandatory for implementation by the relevant state authorities, local authorities, as well as organizations, regardless of organizational and legal forms and forms of ownership. [8]
REFERENCES
1. Bondareva E.S. Quotas of jobs for disabled people: implementation problems. // Labor law, 20012 № 8
2. Pryazhnikova E.Yu. Foreign experience in supporting employment with disabled people // My Landmark, 2013.
3. Order of the President of the Republic of Uzbekistan dated August 01, 2017 № R-5006 "On measures to further improve the system of state support for disabled people."
4. Nikitin D.A. Employment of people with disabilities: an integrated approach: textbook. Moscow: Press-book, 2012. 256 p.
5. Tsyganov M.E. Integration of people with disabilities into the sphere of employment: the experience of the European Union countries // Labor abroad. 2009. № 4.
6. Kotov V. Review of the legislation of other countries in the field of employment of disabled people / V. Kotov // www.rabota.perspektiva-inva.ru, free.
7. Isachenko T.M. Basic principles of formation of the European employment strategy / T.M. Isachenko // Labor abroad. 2001. - № 4. - P.3-17.
8. Lushnikova M.V., Lushnikov A.M. International Labor Law and International Social Security Law. - Yaroslavl .: YSU, 2010 .- P. 541
12.00.08 - Criminal law. Offence prevention. Criminology.
Criminal-executive law
CRIMINAL-LEGAL ASPECTS OF REGULATION OF BUSINESS ACTIVITY: THE EXAMPLE OF UZBEKISTAN
Kurbanov Marufjon Mamadaminovich
Head of the Department of Tashkent State University of Law,
Tashkent, Republic of Uzbekistan _m. kurbanov@tsul. uz
A R T I C L E I N F O
A B S T R A C T
Keywords:
entrepreneurial activity, obstruction of entrepreneurial activity, unlawful interference, unprivileged private property, imposing on the owner of knowingly unacceptable conditions, incentive norms, compulsory involvement of
business entities to charity and other activities.
This article is dedicated to the institute of protecting business through criminal law in the Republic of Uzbekistan. In it the author conducted an analysis general characteristics of crimes related to obstruction, unlawful interference in business activities according to the Criminal code of the Republic of Uzbekistan. Therefore, researching of legal nature of crimes against business, analyzing its objective and subjective signs has a very special significance. The author reveals the social danger of these kind of crimes, necessity of appointing the criminal responsibility for it. Such types of crimes against business Violation of the right to private property, Forced involvement of business entities in charity and other events, Illegal suspension of activities of business entities and (or) operations on their bank accounts are analyzed. Therefore, researching of criminal law regulation of business activity in the example of the Republic of Uzbekistan, analyzing its objective signs has a very special significance. The author reveals the social essence of criminal law regulation of business activity in Uzbekistan danger. And, namely it has been provided specifics of criminal legal protection of entrepreneurial activity in the criminal law of Uzbekistan are determined by the model of the economic system and the legal regulation of economic relations in the state. On the base of Criminal Code of the Republic of Uzbekistan, reviewed the
significant aspects of protecting business through criminal law in the Republic of Uzbekistan.
After the abolition of the Soviet economic system and the transition to a market economy, the country adopted laws that restrict government interference in business activities of various forms of ownership. The rapid development of economic relations in the country required the state to review criminal legislation in this area.
At the beginning of the last decade of the twentieth century, the economy of the Republic of Uzbekistan began to manifest itself in various forms of ownership, including private ownership. In order to create a stable economic foundation of society, the development of the environmental economy required the protection of private property, strengthening its role in the economy, further improving the business environment and the formation of a regulatory framework.
In particular, article 36 of the Constitution of the Republic of Uzbekistan states that everyone has the right to own property, confidentiality of Bank deposits and the right to inheritance, which is guaranteed by law.
The country's economic development depends on economic liberalization, guarantees of freedom
of economic activity,
entrepreneurship and labor, equality and legal protection of all forms of ownership, improvement of the business environment, creation and legal support of property.
The experience of developed countries shows that the development of entrepreneurship plays a very important role for the introduction and improvement of market relations. Entrepreneurship is also a driving force for community development and the economic base of civil society. This is due to the fact that the formation of entrepreneurial activity in society creates opportunities for the realization of personal creative potential, encourages an initiative and innovative approach to the development of various forms of ownership in the field of competition.
At the beginning of the twentieth century, the creation of a market for goods and services with a relatively low standard of living for the majority of the population, the development of various economic entities created a high level of criminogenic state of socio-economic contradictions and social relations. Therefore, the distribution of production and material values has led to the establishment of 'mass
criminal control' over the activities of business entities, which negatively affects the economic security of the country. In these conditions, business activity needed not only an effective system of civil law regulation, but also adequate criminal legal protection [2].
Crimes related to obstruction, illegal interference in business activities
Closely related to such categories of values in law, such as equality, freedom, and justice, is the category of property. At its core, it is an objective continuation of human existence, expressed in material objects and other values associated with the work of man and other activities. Property is one of the main elements of the content of society's life, public relations. Around them, legal norms are formed that regulate both the property relations themselves and all other relationships associated with this category. It makes no sense to talk about justice in a civilized and therefore reasonable society if the problems of understanding and regulating it as a source of life and development of every human being and of the whole society are not solved.
Moreover, the individual only becomes a person who has been
developed in moral, social and political terms if he has property in the sphere of a variety of social relations — an obligatory material attribute of his being, which is supported by the state and therefore has the right to property. [1]
As Walter emphasized, the right to property is a natural and inalienable human right. It is the broadest type of property rights that secure the ownership of things to subjects of civil legal relations. [2]
Socially entrepreneurial activity is an important part of the transition to the civilized market relations, of formation in a civil society, democracy development, reliable socio-economic, political and other rights and freedoms of man and citizen.
The development of entrepreneurship means the emergence of a layer of people focused on independent, proactive activities aimed at making a profit, able to take risks and be responsible for the results and consequences of their actions. This is a layer of entrepreneurs, which is the main pillar of the market economy in developed countries, and is currently in the process of formation and development in Uzbekistan.
Thus, on the one hand, entrepreneurship creates a certain group of social relations that is very
important for modern society, which, as it develops, is able to exert a reforming and civilizing influence on the entire social mechanism. On the other hand, a whole layer of carriers of these relations - entrepreneurs who fill the life of society with reasonable initiative, risk, responsibility for their work and its results-appears and grows. [2]
The country's economic development depends on economic liberalization, guarantees of freedom of economic activity,
entrepreneurship and labor, equality and legal protection of all forms of ownership, improvement of the business environment, creation and legal support of property.
The experience of developed countries shows that the development of entrepreneurship plays a very important role for of market relations. Entrepreneurship is also a driving force for community development and the economic base of civil society. This is due to the fact that the formation of entrepreneurial activity in society creates opportunities for the realization of personal creative potential, encourages an initiative and innovative approach to the development of various forms of ownership in the field of competition. [3]
In the scientific literature, there are still many definitions that characterize entrepreneurship and the entrepreneur from economic, psychological, managerial and other points of view.
For example, considering the concept of entrepreneurship and entrepreneur from an economic and managerial point of view, R. Khizrig and M. Peters note that entrepreneurship should be understood as an innovative process that creates values that have value, and under the entrepreneur-a person who spends the necessary time and effort on this process, who takes all the financial, psychological and social risk, receiving money and satisfaction for the achieved results. [5]
Therefore, in order to strengthen property relations, article 53 of the Constitution of the Republic of Uzbekistan states that private property is inviolable and protected by the state as other forms of property. [4] In turn, attention was paid to the process of denationalization and privatization of property.
The legal basis for the protection of private property is reflected in the Civil code of the Republic of Uzbekistan [5], the laws 'On private enterprise' [6], 'On
guarantees of freedom of business activity' [7] and other legal acts.
As well as the criminal code of the Republic of Uzbekistan also provides for the protection of the interests of business or other activities not prohibited by law-banking, financial, etc. Civil legislation regulates the rules of business activity, business turnover, education, state registration, reorganization, succession and liquidation of legal entities.
Special attention was paid to the development of small businesses and business entities and ensuring sustainable economic growth through the liberalization of the country's economy. In particular, as a result of a radical revision of the legal framework to ensure reliable protection of private property, small business and private
entrepreneurship, more than 20 laws were adopted aimed at liberalizing the activities of small and medium-sized enterprises and removing obstacles to business activity.
Nowadays, in Uzbekistan business entities occupy an important place in the economy and their contribution to the national economy and the development of financial markets is significant. From 1991 to 2020 it was made more than 2,500 law acts, directly or indirectly regulating the corporate relations.
Today it has gained sufficient experience, which shows that in the conditions of Uzbekistan and the justifier of the most appropriate option is itself a form of property when the shares are owned, along with domestic and foreign investors. Uzbekistan has adopted a gradual and cautious approach in its transition to a market economy.
In order to clarify the concept of 'entrepreneurial activity' it should be glanced to legal acts related to this sphere. In particular, article 3 of the Law of the Republic of Uzbekistan dated May 2, 2012 'On guarantees of freedom of entrepreneurship' defines the concept of 'entrepreneurial activity', according to which entrepreneurial activity is carried out in accordance with the law, it is an initiative aimed at generating income (profit) at own risk [11].
In accordance with the decree of the President of the Republic of Uzbekistan dated May 15, 2015 'On measures to ensure reliable protection of private property, small business and private
entrepreneurship, removing barriers to their accelerated development' [8] the Law of the Republic of Uzbekistan 'On amendments and additions to certain legislative acts of the Republic of Uzbekistan aimed at further strengthening the reliable protection of private property,
business entities, removing barriers to their accelerated development' [9], and on the basis of this Law, Chapter XIII1 of the Criminal code of the Republic of Uzbekistan was introduced (Crimes related to obstruction, illegal interference in business activities, and other crimes that infringe on the rights and legitimate interests of economic entities) [11].
For that purpose, on January 22, 2018, the Presidential Decree #5308 [12] approved the State program for the implementation of the Action Strategy for the five development priorities of the Republic of Uzbekistan for 20172021. The decree created favorable legal and organizational conditions for the development of active entrepreneurship and provides legal guarantees for the protection of business entities and illegal interference in their activities.
In turn, it should be noted that offenses related to business obstruction and illegal interference undermine the country's economy and its investment attractiveness.
Crimes related to obstruction, illegal interference in business activities represent general rules and definition of which is based on the content of legislation regulating public relations related to business.
As the country strengthens market relations, freedom of economic activity, and maximum expansion of the rights of subjects of such activity, it becomes more and more urgent to strengthen property rights in every possible way, and therefore to counteract any encroachments on it, including those that, being directly directed against other objects, often cause damage to the property interests of owners or other owners. In this regard, in order to support business entities, create favorable conditions for them, as well as increase the level of employment, prevent illegal interference in business activities plays an important role in the development of the country's economy.
So, in our opinion business activity needed not only an effective system of civil law regulation, but also adequate criminal legal protection.
Features of criminal legal protection of business activity in the criminal law of foreign countries are determined by the model of the economic system and the legal regulation of economic relations in the state.
The most similar criminal law methods of regulating business activity in Uzbekistan and in the former republics of the USSR. In these countries, as in Uzbekistan,
criminal liability for obstructing business activities is established.
Currently, a significant majority of the population is engaged in entrepreneurial activities. Therefore, it would be useful to clarify the concept of this term. The term "entrepreneur" was coined by the French economist Richard Cantillon, who lived in the early eighteenth century. Since then, it has meant a person who risks starting a new business or developing a new idea, new product or service offered to the community [3]. As V. Dal notes: 'being an entrepreneur means making a decision to do something new'. Consequently,
entrepreneurship can be defined as the creative expression of a person or enterprise in developing new products, quality services, or productivity [1].
In particular, article 3 of the Law of the Republic of Uzbekistan dated May 2, 2012 'On guarantees of freedom of entrepreneurship' defines the concept of 'entrepreneurial activity', according to which entrepreneurial activity is carried out in accordance with the law, it is an initiative aimed at generating income (profit) at your own risk [10].
In accordance with article 4 of the Law of the Republic of Uzbekistan dated may 2, 2012 'On guarantees of freedom of
entrepreneurship', business entities (business entities) are legal entities and individuals registered in accordance with the established procedure and engaged in business activities [10].
Accordingly, these actions -crimes associated with obstruction, unlawful interference in business activities, prevent illegal interference in entrepreneurial activities of legal and natural persons registered in the prescribed manner, and carry on business at his own risk and expense to own property liability.
According to the Criminal law of the Republic of Uzbekistan, crimes related to obstruction of business activity or illegal interference can be divided into the following two groups:
1) crimes related to obstruction of business activity - Violation of the right to private property (Criminal code of the Republic of Uzbekistan, article 1921), Forced involvement of business entities in charity and other events (Criminal code of the Republic of Uzbekistan, article 1924) Violation of legislation on licensing and legislation on permitting procedures (Criminal code of the Republic of Uzbekistan, article 1925), Illegal refusal, non-use or obstruction in the application of benefits and preferences (Criminal code of the Republic of Uzbekistan, article 1926);
2) crimes related to illegal interference in business activities -Violation of the procedure for conducting inspections and audits of the financial and economic activities of business entities (Criminal code of the Republic of Uzbekistan, article 1922), Illegal suspension of activities of business entities and (or) operations on their bank accounts (Criminal code of the Republic of Uzbekistan, article 1923), Illegal claim of information on the availability of funds in the accounts of business entities (Criminal code of the Republic of Uzbekistan, article 1928).
These types of crimes are considered less serious danger according to their character.
It is determined that the main direct object of this crime is social relations that are formed in connection with ensuring the freedom of entrepreneurial activity guaranteed by the Constitution of the Republic of Uzbekistan from illegal interference of officials. As an additional direct object of the crime under consideration, it is necessary to designate public relations arising in connection with ensuring the normal activities of state authorities and local self-government.
The objects of crimes related to obstruction of business activity, illegal interference, include public
relations that ensure freedom of business activity in the economy, in particular, established by law.
Followings are considered as a direct objects:
* inviolability and protection of private property of citizens;
* verification of financial and economic activities of business entities;
* maintaining the procedure for suspending the activities of business entities and (or) operations on their Bank accounts;
* regulation of free use of own funds by business entities;
* ensuring the licensing procedure and the procedure for licensing the activities of business entities;
* ensuring the procedure for applying the benefits and preferences provided for by law for business entities;
* secrecy and confidentiality of business information on the Bank accounts of business entities related to the confidentiality and security of information about funds, the availability of funds on Bank accounts and operations on Bank accounts.
The subject of the crime is property in various forms.
A necessary indication of the objective side of this type of crime is that the criminal was previously
TSUL Legal Report
subjected to administrative punishment for such actions.
The subject of the alleged crimes is a sane individual who has reached the age of 16 and has the special characteristics of a criminal. These types of crimes are committed by an official or employee of a controlling, law enforcement or other state body or public organization.
According to the criminal law of the Republic of Uzbekistan, official is the person appointed or elected permanently, temporarily or on special authority performing the functions of a representative of authority or performing organizational-administrative, is administrative-economic functions in state bodies, local authorities, enterprises, institutions,
organizations, irrespective of forms of ownership and authorized for the performance of legally significant actions, as well as the person performing these functions in international organizations or in legislative, an Executive, administrative, or judicial body of a foreign state.
According to the criminal law of the Republic of Uzbekistan, the term 'employee' means a person employed under an employment or civil contract by the government body, commercial, non-profit
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organizations that do not have signs officials.
Crimes related to obstruction of business activity or illegal interference are committed intentionally.
It is clear that the commission of a crime under aggravating circumstances affects the type and size of the sentence imposed. Accordingly, crimes related to obstruction of business activities are committed under the following aggravating circumstances:
• on the grounds of an objective party-with the infliction of major and especially large damage;
• on the grounds of a subjective side - by prior agreement of a group of persons or in the interests of an organized group.
Resolution of the Plenum of the Supreme court of the Republic of Uzbekistan dated December 11, 2013 #20 'On certain issues of judicial practice in cases related to business activities' indicates that illegal interference in business activities should be represented as follows:
- illegal restriction and (or) deprivation of property rights, encroachment on private property, forcing the owner to knowingly unacceptable conditions;
- compulsory involvement of business entities in charity and
Volume 1, Issue 1 (2020)
other activities related to the allocation of money and other material assets;
- violation of the established procedure and terms for issuing licenses and other permits;
- illegal refusal to use privileges and preferences, non-use or obstruction of application, etc. [13]
The legislator threatens to impose criminal penalties for such crimes as imprisonment, restriction of liberty, fine, deprivation of a certain right, mandatory community service, correctional labor.
The criminal law also serves as an incentive for a person to behave positively, which significantly reduces the social risk of committing a crime. In particular, article 1924 of the Criminal code of the Republic of Uzbekistan provides for an incentive norm. According to this, in the case of compensation for material damage, the penalty of restriction of liberty and deprivation of liberty is not applied.
Objective side of this crime -Forced involvement of business entities in charity and other events (article 1924) is the forced involvement of business entities by an official or employee of the controlling, law enforcement and other state bodies and state organizations to charity and other
activities related to the diversion of funds and other material values.
It should be pay attention to that, this crime commits against the willing of business entities.
In this regard, it should be noted that taxes and other mandatory payments for carrying out the activities of the profession, as well as privileges and preferences on tariffs are provided for, but the sponsorship law does not specify the granting of benefits and preferences on taxes and other mandatory payments and tariffs to the subjects of sponsorship. In our opinion, the benefits and preferences granted for the performance of sponsorship and employment activities, which in essence are mutually similar activities, are intended to be unified.
In accordance with the decree of the Cabinet of Ministers of the Republic of Uzbekistan # 227 of August 12, 2014 'Regulation on the procedure for the use of funds in the form of charitable donations of business entities by budgetary organizations' was adopted, according to which compulsory involvement of business entities in charitable activities and other activities related to their spending
In the case of compulsory involvement of business entities in sponsorships and other activities related to the allocation of funds and
other material values, it shall be understood by the official or employee who has the relevant authority that the funds in the account of the business entity or its material assets are involved in sponsorship, charity or certain types of sponsorship.
When it comes to compulsory involvement, it should be understood that the entrepreneurial subjects are forced into sponsorship for the purpose of carrying out activities, providing services, carrying out works through coercion, harassment, demand, intimidation in a non-masculine manner.
In conclusion, it is important to note that illegal interference of officials in business activities is a special type of official abuse in the sphere of economic activity. The main factors contributing to the increased public danger of illegal interference of officials in business activities are the following:
1) violation of the freedom of entrepreneurial activity guaranteed by the Constitution of the Republic of Uzbekistan by such an act;
2) the possibility of a negative impact on the competition of economic entities;
3) discrediting state authorities and local self-government bodies.
The experience of criminal law protection of business activities in Uzbekistan is most useful for improving the protection of the rights and legitimate interests of business entities.
In some countries where business activity has long been an organic part of the economy, criminal law protection of business activity is implemented through the application of general rules on crimes in the field of economic activity and official crimes.
This is largely due to the need to ensure the economic security of the state, compliance with the ban on the penetration of criminal proceeds into the legal sector of the economy.
The specifics of criminal legal protection of entrepreneurial activity in the criminal law of Uzbekistan are determined by the model of the economic system and the legal regulation of economic relations in the state.
REFERENCES:
1. Akhmedova G. U. Questions of crime prevention by organized groups in small business. dis. ... Cand. yurid. nauk. - T., 2007. P. 16.
2. Ezhov Yu. a. Crimes in the sphere of entrepreneurship. Moscow, 2001. P. 5 11.
3. Mescon M. H. Albert M. Hedourif. Fundamentals of management / TRANS. with English-M., 1992. - 44.
4. The Constitution of the Republic of Uzbekistan [Electronic resource] - access Mode: http://www.lex.uz/acts/35869 national database of legislation, 06.03.2019, no. 03/19/527/2706, 05.09.2019, no. 03/19/563/3685.
5. Civil code of the Republic of Uzbekistan [Electronic resource] - access Mode: http://lex.uz/docs/111181 national database of legislation, 23.10.2019, no. 03/19/572/3943.
6. Law of the Republic of Uzbekistan 'On private enterprise' [Electronic resource] -access Mode: http://www.lex.uz/acts/53152 national database of legislation, 21.03.2019, no. 03/19/531/2799.
7. Law of the Republic of Uzbekistan 'On amendments and additions to the law of the Republic of Uzbekistan 'On guarantees of freedom of business activity' [Electronic resource] - access Mode: http://www.lex.uz/acts/2006777 national database of legislation, 21.03.2019, no. 03/19/531/2799.
8. Decree of the President of the Republic of Uzbekistan 'On measures to ensure reliable protection of private property, small business and private entrepreneurship, removing barriers to their accelerated development' no. up-4725 15.05.2015 [Electronic resource] - access Mode: http://lex.uz/docs/2647221 national database of legislation, 30.07.2018, no. 06/18/5490/1584.
9. The Law of the Republic of Uzbekistan 'On amendments and additions to certain legislative acts of the Republic of Uzbekistan aimed at further strengthening the reliable protection of private property, business entities, removing barriers to accelerated development' [Electronic resource] - access Mode: http://www.lex.uz/acts/2724500 national database of legislation, 08.11.2019, no. 03/19/581/4004.
10. Law of the Republic of Uzbekistan 'On guarantees of freedom of business activity'. National database of legislation, 21.03.2019, no. 03/19/531/2799, 12.12.2019, no. 03/19/592/4144; 08.01.2020, no. 03/20/601/0025.
11. Criminal code of the Republic of Uzbekistan [Electronic resource] - access Mode: https://lex.uz/docs/111457 (accessed 20.02.2020).
12. Decree of the President of the Republic of Uzbekistan dated 22.01.2018 no. #5308 'On the state program for the implementation of the action strategy for five priority areas of development of the Republic of Uzbekistan in 2017-2021 in the year of 'Support for active entrepreneurship, innovative ideas and technologies' [Electronic resource] -access Mode: https://nrm.uz/contentf?doc=529037_&products=1_vse_zakonodatelstvo_uzbekistana (accessed 20.02.2020).
13. Resolution of the Plenum of the Supreme court of the Republic of Uzbekistan dated December 11, 2013 #20 'On certain issues of judicial practice in cases related to business activity' [Electronic resource] - access Mode: https://lex.uz/docs/2307200 (accessed 20.02.2020)
SOME ISSUES OF QUALIFICATION OF THE RAPE CRIME
Uralov Sarbon Sardorovich,
Lecturer of the Criminal Procedure Law Department of Tashkent State University of Law E-mail: richmond0770@gmail. com)
A R T I C L E I N F O
A B S T R A C T
Keywords: sexual violence, sexual
satisfaction in an unnatural way, sexual freedom, sexual integrity, defloration signs, sexual aggression.
The article describes the issues that need to be addressed in the investigation of crimes against sexual freedom. Problems and shortcomings in the detection of the crime, evaluation of the evidence, qualification are described, as well as practical proposals and recommendations for their elimination are developed. In addition, both practical and theoretical views were discussed in order to ensure a full, impartial and comprehensive review of the case in the pre-trial investigation, preliminary investigation and trial.
Due to the liberalization of criminal penalties in our country, it should be noted that in our national legislation, rape and unnatural satisfaction of sexual needs have a place in criminal law as a separate crime. The Resolution of the President of the Republic of Uzbekistan "On measures to radically improve the system of
criminal and criminal procedure legislation" refers to "international unification". The purpose of the revision of the Criminal Code is based on a radically new form and the procedure is also the international unification of criminal law. As proof of our opinion, we can say that if a person commits these two types of crime for the first time
together, the person's criminal liability and punishment are determined on aggravating grounds. Therefore, the crime of rape and unnatural satisfaction of sexual needs should be reduced to a single article. Because there is no separate motive and purpose for committing these two types of crimes. Based on the inner experiences of the person, one is connected to the other based on membership. Therefore, foreign experiments found it expedient to form a single content. As a result of our study of foreign law, we have found that in most countries of the world, "rape" and "unnatural sexual gratification" are considered as one-off crimes, and their names are common in criminal codes.
In particular, Article 178 of the Criminal Code of the Spanish state is called "sexual aggression". Article 22223 of the French Criminal Code is also called "sexual aggression". In the Criminal law of the Federal Republic of Germany, rape and unnatural sexual gratification are also criminal offenses and are referred to as "sexual abuse".
Therefore, based on international experience, we should combine Articles 118 and 119 of the Criminal Code and name its disposition as follows: "intimidation and aggression". The object of the crime is the sexual freedom of the
individual and the objective side must be the use of force, the use of vulnerability, or a real threat sufficient to intimidate. The subject of the crime is a sane individual of 14 years of age. Subjectively, it is intentional. At the same time, we must not ignore the fact that, according to the form of revenge, it is committed intentionally.
There are many problems in theory and practice in prosecuting and punishing a person who has committed a crime of rape. One of the shortcomings of the crime of rape is that it is a lack of qualification. If the revenge by the person is aimed solely at rape, but the victim died during the rape, how was the issue of his qualification resolved? Paragraph 13 of the Plenum of the Supreme Court on the Judicial Practice of Intentional Murder states that intentional homicide in connection with rape or unnatural satisfaction of sexual needs by sexual means the deprivation of life of the victim in the process of committing crimes against liberty should be understood. However, in the case of premeditated murder, in a sense, there must be intent. In this case, too, the social status and responsibility of the accused were assessed as an aggravating circumstance. Practical investigations are qualified by a combination of Articles 97 and 118 of
the Criminal Code if the victim dies as a result of rape by the accused. Such a qualification of an act can be found to be an error. Since revenge is aimed at rape, Article 118, Part 3 of the Criminal Code requires the addition of a separate clause "d1) in the event of the death of the victim."
In most cases, the crime of rape is latent, making it difficult to study the causes and circumstances of such crimes. Nevertheless, due to the general nature of the crimes committed, the lack of comparisons based on the general nature of the crimes committed in neighboring countries, and the forecasting and prevention of rape soon, the weakness of preventive measures.
There are differing views on what gender the victim of rape should be. It has not been decided which gender will be the victim. It is necessary to explain why such an act is called "rape", and the word "honor" is mainly a phenomenon of which gender. The victim of a rape offense can only be a woman, and neither her moral image nor her relationship with the offender is relevant to qualifying the offense as rape [1]. Such theoretical knowledge is reflected in the legislation of many countries. In particular, the decision of the Plenum of the Supreme Court of the Republic of Uzbekistan "On case law on cases of rape and sexual
abuse" emphasizes a woman as a victim. However, the Criminal Code of the Republic of Uzbekistan does not specify whether the victim is a woman or a man. Conflicts in such legislation preclude the qualification of a socially dangerous act and require action based on legal analogies.
The qualification of a crime is always related to the selection and application of a norm of criminal law. As a result of the qualification, the correspondence between the signs of the act and the signs of a specific crime is determined. Another group of scholars, pointing out the specific criminal legal significance of the optional features of the objective aspect of the crime, call them a "trinity" with a specific criminal significance. They are:
a) is directly provided for in the norms of criminal law as a necessary feature of the crime;
b) the aggravating part of the article of the Special Part of the Criminal Code as an aggravating circumstance of the crime;
c) "mitigating or aggravating circumstances" in sentencing [2].
It is known that the composition of a crime consists of a set of necessary and sufficient signs to identify a person as having committed a crime. Therefore, the fact that the method of committing a
crime is directly specified in the disposition of the article indicates that it is a necessary sign of the crime.
A criminal case shall be instituted upon written and oral applications. If the victim gives false testimony, he/she will be warned that he/she will be prosecuted and if he/she agrees to withdraw the application, he/she will be reminded that no case will be initiated. This is stated in the concluding part of the application. Usually, the crime committed will be covered in detail in the application. In particular, the victim reports traces of violence. In this case, a criminal case is initiated only if there is no doubt about the truth of what the victim said. If the victim and the perpetrator have previously been in a friend, relative, or other relationship, it is required to verify that this may be revenge or a personal account. In this case, the nature of the relationship between the victim and the suspect is determined. The 'victim' often tries to blame one person to hide the premarital pregnancy in front of family members. If a long time has elapsed between the use of force and the application, if the victim speaks of circumstances far removed from reality, if there is any doubt as to the veracity of these claims, the investigator shall order an
expert examination to clarify these circumstances. It should be noted that the investigation of the crime of rape has several specific features. They are, first of all, reflected in the fact that criminal proceedings under Part 1 of Article 118 of the Criminal Code are initiated only at the request of the victim. Such restrictions on the initiation of criminal proceedings make it difficult to testify in the circumstances of the case, to interrogate the victim and the suspect, and to conduct investigative actions that may be carried out after the initiation of a similar criminal case. On the contrary, in the presence of the qualifying features provided for in parts 2, 3, and 4 of Article 118 of the Criminal Code, criminal proceedings are instituted regardless of the will of the victim.
As for the qualification of the crime:
Conditions for instituting criminal proceedings regardless of part 1 of Article 118 of the Criminal Code;
Transfer of rape from "part 3" to part 2 of Article 118 of the Criminal Code "concerning a close relative" (the purpose of which applies more to the relationship between spouses);
It is expedient to qualify the crime of rape of a person under 14 and 18 years of age and sexual
intercourse with a person under 16 years of age in one article, with Article 128 of the Criminal Code being called "violation of the sexual integrity of a person incapable of full legal capacity". will be. In this case, the qualification shall not be affected by the fact that it is not clear to the accused whether the person has reached the full legal capacity or not.
The qualification for rape offenses must specify the following:
1) whether the rape was committed (whether the sexual need was forcibly satisfied, if so, whether it was natural or unnatural, whether the rape was not instigated;
2) what method was used by the offender to have sex with the victim woman. The law defines three types of sexual violence, and it is recognized that sexual intercourse is committed with the use of force: physical violence, intimidation, use of the victim's helplessness;
3) against whom the crime of rape was committed (a woman, a minor), whether she had a physical or mental disability;
4) who committed the rape, whether he has committed such crimes before, whether he is a very dangerous recidivist (if the rape was committed by a group of individuals, what is the role and degree of guilt of each of them;
5) what are the consequences of rape, whether they are very serious (death of the victim, unwanted pregnancy, infliction of serious bodily injuries, the origin of mental illness, skin-genital disease, etc.);
6) what is the level of material and moral damage caused to the victim as a result of rape;
7) determination of intent to commit a crime of rape;
8) what circumstances led to the commission of the crime.
Therefore, once a case of rape has been established, the investigator must determine:
a) what exactly is physical violence;
b) the form and content of intimidation;
c) on what the victim's helplessness is based on and what it is expressed.
According to the jurisprudence, physical violence in the form of rape can be manifested in the twisting of the hands, strangulation of the throat, infliction of bodily injuries, the use of painkillers, and so on. Overcoming the victim's resistance through psychological violence can be expressed primarily through intimidation with the use of a weapon, blackmail, or pressure using the victim's service or another dependency. The victim's debilitating
condition may be due to his or her physical disabilities, mental disorder, illness, or inability to control himself or herself as a result of drinking alcohol or taking drugs [3]. It is advisable to distinguish the following typical situations that occur at the initial stage of qualification in cases of rape:
1) the perpetrator and the victim knew each other before;
2) the victim recognizes one participant in the rape as a group;
3) the perpetrator is not familiar with the victim, but can see him and recognize him by the appearance of the offender;
4) the victim has not seen the offender (s) due to a sudden attack or helplessness, and therefore cannot recognize them.
Special emphasis should be placed on the qualification of crimes against sexual freedom, ie when examining the suspect's involvement in the case, if the suspect states that sexual intercourse is voluntary, two issues should be addressed:
a) whether there was violence by the suspect and whether the victim resisted those actions;
b) whether the relationship between the suspect and the victim was by mutual consent.
As a result of the resistance, there are traces of violence and resistance on the clothes and body of
the suspect and the victim. Witness testimony is also important for the proper resolution of the case. Witnesses testify that they heard or saw the victim's voice, screams, and forced the girl to the crime scene.
It is also important to determine how long after the crime was committed, the victim contacted law enforcement. The investigation examines the relationship between the victim and the suspect, how long they have known each other, which of them is more prone to intimacy, and how the victim behaves with the suspect or other men if he or she is familiar with the suspect. In this case, it is determined what factor caused the formation of the motive. In the meantime, it should also be checked that he was in a close relationship with someone. It is determined who arranged the meeting between the suspect and the victim on the day of the crime, and whether the victim concealed the situation, and if so, for what purpose. If the suspect confirms the meeting but denies having sex, then the traces of sexual intercourse, ie the presence of traces of sperm on the victim's body, clothing, damage to clothing (signs of defloration) are checked.
At times, the victim may testify boldly about the suspect's clothing and individual characteristics. If the suspect is familiar with the victim and
admits that he or she did not meet that day and has an alibi, then the case is investigated as a crime committed by a stranger. If the crime was committed in the suspect's house or the house of his acquaintances, relatives, the condition of the equipment in this house is asked to determine whether the victim was in this house (the victim was not able to know in advance about the suspect's house). If the suspect admits that the sex was voluntary and that there was a warm relationship between them, the correspondence between them, the diary, the photos, and people who have known the relationship for a long time ask how their relationship was in practice. If the warmth of the relationship between them is detected, it is asked why these cases are hidden. This leads to the conclusion that the testimony of the suspect is correct. There may be some conflicting facts in qualifying the crime of rape. In this case, the following versions are referred.
Prosecution version: the defendant violated his will against the will of the victim; the version that the accused was at the scene is claimed.
Defensive version: the accused was not present at the scene, did not have sex, or had sexual intercourse at the request of
the applicant, the victim erroneously or intentionally misrepresented the culprit, the applicant was allegedly not raped.
The following facts must be proved in qualifying rape offenses:
- whether there are signs of
rape;
- when, where and in what circumstances the rape took place, if there is a sign of rape;
- whether the rape has a physical or mental appearance;
- whether the victim is in serious condition, what it is;
- What is the condition of the victim, his age, health, the general attitude to men (women);
- description of the accused, age, attitude to the victim, mental state, state of conviction;
- the role of each in the case of rape by a group;
- what were the consequences of the rape;
- the cause of bodily injuries;
-pregnancy status;
- is not infected with venereal disease;
- material and moral damage;
- The cause and circumstances of the crime.
When qualifying crimes against sexual freedom, special attention should be paid to their criminal nature. In other words, it is determined whether the victim had
sexual intercourse before the rape, and if so, when the fetus or menstruation was present or not. Detailed information will also be obtained as to whether the victim's clothing was preserved during the assault. Otherwise, no consensus can be reached on the composition of the crime. The jurisprudence shows that the majority of rape crimes are the result of alcohol consumption. To determine whether the victim was helpless, whether he understood the incident, whether he had the opportunity to resist, whether he had consumed alcohol (before the incident), if so, how much and what kind of drink is determined. The initiation of criminal proceedings against this socially dangerous act and its qualification is a very sensitive issue. The version that the person may be slandering should be checked separately. The delay in
applying based on such a version, the influence of close relatives, the approximate description of the time and place of the aggression, the existence of serious discrepancies between the victim's testimony and the information gathered on the case, cases where the instructions are incorrect, free, careless talk about the incident are taken. Besides, to check this version, the following questions were asked: how was it known to the close relatives that the victim had been raped, whether he filed the complaint voluntarily or under the influence of other persons, whether there were any signs of aggression, his instructions whether there is a conflict between them, the relationship between the victim and the suspects before the incident, how they met, whether there is a motive for slander (provocation).
REFERENCES:
1. Мукажанов А.Понятие и объект изнасилования // Сборник материалов научно-практической конференции - Алматы: ТОО «Баспа», 2001. - 32 стр.;
2. Уголовное право. Научно-практический журнал. РФ.:№1/2019г.;
3. Nomusga tegish jinoyatini tergov qilish amaliyoti: O'quv-metodik qo'llanma / SH.T.Ikramov, D.M.Mirazov, B.B.Murodov, B.F.Alimov va boshq. - T.: O'zbekiston Respublikasi IIV Akademiyasi, 2012. - 80 b.;
12.00.09 - Criminal action. Criminalistics, investigation and search law and court expertise
CYBERCRIME SUBJECT AND LIMITS OF PROOF
Rakhimova Ulzana Khamidullaevna,
Lecturer of Criminal Procedural Law Department _of Tashkent State University of Law
A R T I C L E I N F O
A B S T R A C T
Keywords:
cybercrime, subject of proof, limits of proof, sufficiency of evidence
The article deals with the issues of the subject and the limits of proof for cybercrimes. The theoretical approach to these two concepts in the criminal process is analyzed. The statistics of cybercrimes and the relevance of this problem for the entire world community are presented.
INTRODUCTION
The Internet covers our life every day. As of January 2020, Northern Europe ranked first by region with 95 percent online penetration, followed by Western Europe with 92 percent. The global average penetration rate was 59 percent, up from 35 percent in 2013 [1]. In this regard, the so-called cybercrimes committed with the help of information technology have become more frequent. Every year, criminals are becoming more sophisticated and commit "smart"
crimes that require certain skills and abilities rather than physical strength. This became relevant during the coronavirus pandemic, when at least a quarter of the world's 7.8 billion people were forced to stay at home [2]. However, the crime rate did not fall, and in some countries even increased [3]. This is especially true of cybercrimes committed using information technology. Foreign and national scientists disagree on the name of this type of crime. In science and legislation of
different countries, there are such names as "computer crimes", "crimes in the field of security of the circulation of computer information", "crimes in the field of high technologies", "information crimes", "cybercrimes, crimes in the field of computer information", etc. One of the first attempts to define the terms used in this area was the Agreement on Cooperation of the member states of the Commonwealth of Independent States in the fight against crimes in the field of computer information, signed back in 2001 in Minsk. According to Art 1 of the specified document "crimes in the field of computer information" is a criminal offense, the subject of the encroachment of which is computer information [4].
Repin and Afanasyev in their article give the following brief classification of IT incidents and methods of cybercrimes:
1) leakage of confidential information;
2) illegal access to information;
3) removal of information;
4) information compromise and sabotage;
5) IT fraud;
6) abnormal network activity;
7) abnormal behavior of business applications;
8) the use of company assets for personal purposes or in fraudulent transactions;
9) Denial of Service (DoS) attacks, including distributed attacks (DDoS);
10) interception and substitution of traffic;
11) phishing, hacking, attempted hacking, scanning the company's portal;
12) network scanning, attempted hacking of network nodes, virus attacks;
13) anonymous letters (letters with threats);
14) posting confidential / provocative information on forums and blogs [5]. Today, cybercrime is becoming more widespread, and the associated illicit financial turnover reaches trillions of dollars. In 2015, Intel calculated the probable annual cost of cybercrime to the global economy at over $ 445 billion, including benefits to criminals and costs to companies to recover and protect. According to conservative estimates, the losses will amount to $ 375 billion, and the maximum - $ 575 billion [6]. The UN figures are also close to these figures. According to the UN calculations, revenues from cybercrustations in 2016 amounted to $ 445 billion, in 2018 $ 1.5 trillion, in 2019 $ 2.5 trillion. This indicator is projected to reach USD 6 trillion by 2021 [7].
To prevent and counter cybercrime, the international community has taken many actions and adopted several important international acts, such as the Bangkok Declaration "Engagement and Response: Strategic Alliances in Crime Prevention and Criminal Justice", adopted at the 11th UN Congress in 2005, The Okinawa Charter on the Global Information Society, adopted by the G8 Heads of State and Government on July 22, 2000, Salvador Declaration on Comprehensive Strategies for Responding to Global Challenges: Crime Prevention and Criminal Justice Systems and Their Development in a Changing World, adopted by UN General Assembly Resolution 65/230 on 21 December 2010.
Undoubtedly, the Budapest Convention on Cybercrime, adopted by the Council of Europe on November 23, 2001, remains an important one to this day. By the end of February 2020, 106 (or 55%) of UN members had domestic legislation criminalizing crimes against and with computers in general in accordance with the Convention. Significant progress has been noted, particularly in Africa [8]. Uzbekistan criminalized crimes in the field of information and added Chapter XX1 to the Criminal Code by
the Law of the Republic of Uzbekistan "On Amendments and Additions to Certain Legislative Acts of the Republic of Uzbekistan in Connection with Increased Liability for Committing Illegal Actions in the Field of Informatization and Data Transmission" dated December 25, 2007 № 137.
MAIN BODY It is always difficult to prove cybercrimes due to the fact that these types of crimes have high latency and in most cases it is difficult to investigate them due to many objective factors, such as the incompetence of law enforcement officers in the field of high technologies, the unwillingness of victims to tell the justice authorities about it, insufficient or inadmissible evidence in court, not falling under the jurisdiction of the victim country, which may complicate the capture of criminals and the conduct of investigative actions in general. Some also note the difficulty of preserving the evidence base, since most often computer crimes in the field of fraud are committed by large organizations, and when one criminal is caught and only one electronic device is seized, the other members of such an organization can take measures to destroy the remaining evidence confirming the
TSUL Legal Report
commission of other episodes or their involvement in a crime [9]. As we have already said, in the Republic of Uzbekistan, the legal basis for combating cybercrimes is laid down in the Criminal Code of the Republic of Uzbekistan, in which chapter XX1 "Crimes in the field of information technology" appeared, which includes the following corpus delicti:
- Article 2781. Violation of the rules of informatization;
- Article 2782. Illegal (unauthorized) access to computer information;
- article 2783. Manufacturing for the purpose of marketing or marketing and distribution of special means for obtaining illegal (unauthorized) access to a computer system, as well as to telecommunication networks;
- Article 2784. Modification of computer information;
- Article 2785. Computer sabotage;
- Article 2786. Creation, use or distribution of malicious programs;
- Article 2787. Illegal (unauthorized) access to the telecommunications network.
However, information technology crimes are not limited to computer information crimes. In a number of compositions of the Criminal Code of the Republic of Uzbekistan, the corresponding constructive or qualifying signs of the commission of a socially dangerous act using
E-ISSN: 2181-1024
computer technology,
telecommunication networks, and also the world information network Internet are fixed.
An example is clause "d" of part 3 of article 167 of the Criminal Code of the Republic of Uzbekistan, namely theft by embezzlement or embezzlement of someone else's property entrusted to the guilty person or under his jurisdiction "using computer equipment." Based on this, we can talk about two directions: 1) the investigation of crimes in the field of computer information and 2) the investigation of crimes, where computer technologies are used to commit other crimes. Another example of the second point is computer fraud, the so-called "online fraud". Establishing the truth in criminal cases is impossible without defining the subject and limits of proof. Previously, these two concepts were identified, but many authors do not agree with this opinion and consider it erroneous. According to A.R. Belkin, the subject of proof is the totality of the circumstances proved in the case.
"As a result of informational reflection in the structure of knowledge of the investigator, prosecutor, lawyer, judge, as a component of consciousness, a certain place is occupied by the knowledge of the
Volume 1, Issue 1 (2020)
schema of the subject of evidence contained in the criminal procedure law. This knowledge appears as a result of studying the text of the law and criminal procedural literature and generalizing their own experience in the investigation, consideration and resolution of criminal cases. In view of this, in the minds of these subjects of cognition, the subject of proof does not exist in the form of a bare scheme, but is a complex mental formation, consisting of ideas, concepts, judgments" [10].
The subject of proof (or the circumstances to be proven) is the totality of facts to be established for the correct resolution of the criminal case. A clear definition of the subject of proof in a criminal case is a necessary condition for knowing the truth and the correct legal qualification of the committed act [11, P.6]. The scope of proof is understood as the actual scope of proof, i.e. necessary and sufficient, from the point of view of the official who makes a decision in the course of the proceedings on the case, the level of research of information that establishes the circumstances to be proved in the case. The limits of proof are an essential characteristic of the proof process. After all, they reflect quantitative and qualitative changes in knowledge about the
circumstances of the case; disclose cognitive activity (primarily the court) in the dynamics of its development to achieve reliable knowledge [11, P.10].
The subject of proof is a set of circumstances stipulated by the criminal procedural law that are to be established in the course of criminal proceedings by means of evidence, in order to resolve it lawfully, reasonably and fairly [12]. Alexandrov A.S. and Frolov S.A. write: "If the subject of proof answers the question of the direction of the proof, then the limits of proof speak of the means of ensuring the reliability of knowledge of the facts and circumstances that are the subject of proof [13]. Sheifer S.A. in his scientific work cites the opinion of V.D. Arsenyev, who noted that the subject of proof is data about the real circumstances of the event that has occurred, to establish which the evidentiary activity in a criminal case is aimed, i.e. information about them held by the investigator and the court. According to Schafer himself, the subject of proof is a specific procedural designation of the subject of knowledge in a criminal case. These are such objectively existing properties and connections, i.e. the factual circumstances of the event under investigation, which have legal significance, characterize it as a
socially dangerous and criminally punishable act, and the person who committed the act as a guilty [14]. In other words, the subject of proof is the totality of the circumstances provided for by the criminal procedure law that must be established for a quick, complete and fair resolution of a criminal case. It should be noted that in order to make the correct decision in a criminal case, it is necessary that all the circumstances that are important for its resolution are reliably clarified in the course of the proceedings. For each case, only the circumstances inherent in it will be significant. At the same time, all crimes, as unlawful socially dangerous acts, contain a common thing, and each individual crime contains the same basic legal elements as other crimes. Therefore, the Criminal Procedure Code defines a number of circumstances common to all criminal cases, which are subject to proving in each criminal case (Article 82 of the CCP). So, article 82 of the Criminal Procedure Code of the Republic of Uzbekistan lists the grounds for accusation and conviction. In order to bring a case to court with an indictment or indictment and for a conviction, it must be proven: 1) the object of the crime; the nature and amount of harm caused by the
crime; circumstances characterizing the personality of the victim;
2) the time, place, method, as well as other circumstances of the commission of the crime specified in the Criminal Code; the causal relationship between the act and the socially dangerous consequences that have occurred;
3) the commission of a crime by this person;
4) commission of a crime with direct or indirect intent or through negligence or arrogance; motives and goals of the crime;
5) the circumstances characterizing the personality of the accused, defendant.
However, based on the characteristics of cybercrimes, it can be concluded that this list is not exhaustive. In this case, the following circumstances should be established:
1) the fact of the commission of a criminal act, i.e. whether the act or omission in question is criminal;
2) subject of criminal encroachment -cybercrime is not limited to computer information;
3) the place of the crime is one of the most important conditions, since according to statistics, about 70% of cybercrimes cross national borders.
4) the way the crime was committed;
5) the operating mode of the computer system or the conditions of
access to computer information, protection means;
6) traces left by the crime. Detection, fixation and seizure of traces of a crime is one of the important conditions for a legal and fair investigation of a criminal case and the collection of the necessary evidence base;
7) the nature and extent of damage can be expressed in property, physical and moral damage, as well as in causing damage to business reputation;
8) the identity of the person who committed the crime. Establishing this condition is a little difficult due to the high latency of cybercrime; 9) reasons and conditions contributing to the commission of a crime.
In accordance with the Convention, the object of cybercrimes is the public relations protected by legal norms arising in the implementation of information processes regarding the production, collection, processing, accumulation, storage, search, transmission, distribution and consumption of computer information, etc.
The object is public relations to ensure the security of computer information (inviolability of computer information), as well as the procedure for using automated data processing systems.
We can say that the object of crimes in the field of computer information has all the features inherent in the general object of the crime, the generic object of crimes against public safety and public order, the specific object of criminal attacks of the group in question, and there is also an additional feature that individualizes the object of crimes in the field of computer information and indicating that the crimes belong to the investigated group of criminal encroachments.
Thus, the object of crimes in the field of computer information is public relations protected by criminal law, which incorporate all the signs of a common object of crime, as well as limited by the nature of public relations that ensure public safety and public order, and, finally, constituting the essence of a specific and immediate object - public relations ensuring the safety of computer information. Therefore, in the general concept of corpus delicti in the field of computer information, the first of the signs that characterize the object of the crime is the object itself, which is social relations that ensure the safety of computer information [15]. The next obligatory feature related to the scope of the object in the general concept of the corpus delicti of cybercrimes is the so-called
intangible subject of the crime. It is computer information protected by law, which exists before the start of criminal influence on it in a certain state.
The objective side of cybercrimes is characterized by the allocation of four groups of socially dangerous acts:
1. Against the confidentiality, integrity and availability of computer data and systems;
2. Associated with the use of computers;
3. Content related data;
4. Associated with violation of copyright and related rights.
From the objective side, these crimes are expressed in:
- creation, implementation and operation of information systems, databases and data banks, systems for processing and transferring information, authorized access to information systems without taking established protection measures, which caused major damage or significant harm to the rights or legally protected interests of citizens, or state or public interests (article 2781 of the Criminal Code);
- illegal (unauthorized) access to computer information, if these actions entailed the destruction, blocking, modification, copying, or interception of information, disruption
of the computer, computer system or their network (Art. 2782 CC);
- manufacture for the purpose of marketing or marketing and distribution of special software or hardware for obtaining illegal (unauthorized) access to a protected computer system (Article 2783 of the Criminal Code);
- unlawful modification, damage, erasure of information stored in a computer system, as well as the introduction of deliberately false information into it, causing major damage or significant harm to the rights or legally protected interests of citizens, or state or public interests (Article 2784 of the Criminal Code);
- disabling someone else's or service computer equipment, as well as the destruction of a computer system (Article 2785 of the Criminal Code);
- creating computer programs or making changes to existing programs for the purpose of unauthorized destruction, blocking, modification, copying or interception of information stored or transmitted in a computer system, as well as the development of special virus programs, their deliberate use or distribution (Article 2786 of the Criminal Code).
Cybercrimes are more often committed for economic purposes. This can be, for example, causing economic damage in the form of theft
of money and confidential information. Other types of goals include political goals - causing damage to basic state and political institutions, undermining the system of power relations and trust in power. The third type of ideological goals: the dissemination of ideas and ideologies with the aim of recruiting Internet users into the ranks of, for example, radical terrorist and nationalist groups. The fourth type of goals includes socio-psychological goals, such as causing moral, psychological harm to citizens. The subject of these crimes may be a sane person who has reached the age of 16, who has committed the above criminal offenses. Attackers can be conventionally divided into several groups: hackers, spies, terrorists, corporate raiders, thieves, etc. Usually, these are people with extraordinary abilities and special knowledge in the field of computer technology. Or it is a person who has access to the operation of the mentioned technical means. These can be programmers, computer operators, service technicians, and other persons who have access to them at work.
The subjective side of the crime is characterized by intent, negligence and with a complex form of guilt, and the crimes under Art 2783, 2785 and 2786 of the Criminal Code of the
Republic of Uzbekistan can be committed only with direct intent. It should be noted that when committing a cybercrime, a person realizes the social danger of an act, foresees the onset of consequences harmful to society or an individual, and wants these consequences to occur, or is indifferent to them. Cybercrimes prevent them from being committed through negligence or frivolity.
CONCLUSION
Summing up, we can conclude that the subject and limits of proof are interdependent, but not equivalent concepts. The subject of proof is information about the real circumstances of the event that took place, to establish which the evidentiary activity in a criminal case is aimed. Limits of proof - this is a sufficient body of evidence that serves as a comprehensive, complete and objective establishment of all the circumstances that are relevant to the case.
Determination of the limits of proof depends on a specific criminal case and ensures the establishment of the sufficiency and reliability of evidence for making a specific decision. The difficulty is that it is impossible to establish in advance the range of circumstances included in the subject of proof in a particular case.
The circle of these circumstances is determined and established by the official conducting the investigation of the case, developing and checking versions of the event that took place. To effectively combat cybercrimes, it is necessary to create a whole system of cybersecurity, which, in addition to countermeasures, should
also include an increase in the level of digital literacy of the population. From the above, we can conclude that cybercrime is by far the most dangerous and rapidly gaining momentum problem, which must be dealt with not only at the national but also at the international level.
REFERENCES
1. https://www.statista.com/statistics/269329/penetration-rate-of-the-internet-by-region
2. https://www.bbc.com/russian/news-52034816
3. https://acca.media/uzbekistan-za-vremya-karantina-prestuplenij-v-strane-gorazdo-stalo-bolshe/
4. Fedorovich V. Yu. What is "cybercrime"? // Bulletin of the Moscow University of the Ministry of Internal Affairs of Russia, № 3, 2020 - p. 15-17
5. Repin M. Ye., Afanasyev A. Yu. Crimes in the field of computer information: problems of detection and disclosure - "Young Scientist" № 15 (95) August, 2015 - pp. 460-463
6. Net Losses: Estimating the Global Cost of Cybercrime Economic impact of cybercrime II; Center for Strategic and International Studies - June 2015 McAfee. [Электронный ресурс] URL: https://csis-website-prod.s3.amazonaws.com/s3fs-public/legacy_files/files/attachments/140609_McAfee_PDF.pdf
7. https://news.un.org/ru/interview/2019/10/1366141
8. https://www.coe.int/en/web/cybercrime/-/global-state-of-cybercrime-legislation-update-
9. Kaigorodova AA Topical issues of investigation and proof of cybercrime // Evolution of Russian law. Materials of the XVII International Scientific Conference of Young Scientists and Students. - Ural State Law University. Yekaterinburg, 2019 - pp. 568-569
10. A.A. Kukhta. Proving the Truth in Criminal Procedure
11. A.Kh. Garifulina and others. Proof in a criminal case. Schemes and tables: Textbook. manual - M.: UNITY-DANA: Law and Law, 2012.
12. Alferov V. Yu., Grishin AI, Ilyin NI, Chernyshev BV Fundamentals of the theory of evidence in criminal proceedings in Russia: textbook. manual - 2nd ed., revised, and add. - Saratov: Saratov Socio-Economic Institute (branch) of the PRUE. G.V. Plekhanova, 2017 .- p. 27
13. Borulenkov Y. P. The concept of "limits of proof" must correspond to the concept of adversarial proceedings // Bulletin of the Academy of the Investigative Committee of the Russian Federation. - 2014. - № 1. - P. 39-40
14. Sheifer S.A. Evidence and proof in criminal cases: problems of theory and legal regulation. M .: NORMA-INFRA-M, 2012 - P. 42
15. https://cyberleninka.ru/article/n/obektivnye-i-subektivnye-priznaki-v-obschem-ponyatii-sostava-prestupleniy-v-sfere-kompyuternoy-informatsii
CIRCUMSTANCES TO BE DETERMINED WHEN INVESTIGATING
INTENTIONAL KILLING
Topildieva Dilrabo Mirshakhidovna,
Lecture of Tashkent State University of Law E-mail: d. topildieva@gmail. com
A R T I C L E I N F O A B S T R A C T_
Keywords: This article addresses issues related to the
Murder, consequence, circumstances that are to be established in the facts, circumstances, investigation of murders committed with intent. By intent, cause of death, establishing some facts, we are considering the issues evidence, crime, situation. of their proof and the appointment of appropriate
examinations, which is fundamental in the disclosure of these types of crimes.
Investigation of murders, as well as other crimes, requires the investigator to find out all the circumstances of the case, to prove it in order to produce the correct qualification of the offense and assign the appropriate punishment, taking into account all the features of the crime.
A quick and complete investigation and disclosure of them, comprehensive identification and elimination of the causes and conditions that contributed to the commission of each murder is the
most important task of the operational-search and investigative bodies. Premeditated murders are often carefully prepared for a long time, sometimes by clever methods.
Circumstances subject to proof in murder cases are an essential part of the methodology for investigating these crimes. It is the establishment of these circumstances that is the goal of the entire work of the investigator.
The main task of a murder investigation is to establish the event of a crime. First of all, it is necessary
to establish the fact of the death of a certain person - a violent death, i.e. caused by an unauthorized hand. Based on the materials of the case, there should be no doubt that death was due to illness, later an accident, old age and suicide. If there is no definite information about the victim's identity, then it is not considered fully investigated.
In order for the sentence passed to be justified and fair, it is necessary to establish as many facts as possible about the victim. These facts are his gender, age, place of residence, activity, profession, place of work, position held, the presence or absence of a criminal record, as well as his state of health, character traits, habits and other facts that are important for compiling a complete picture of the victim and his life.
Murder cases are initiated on the basis of citizens' statements, reports of institutions, enterprises and organizations, law enforcement agencies as a result of direct detection of signs of a crime, as a result of a confession. The reason is the discovery of a corpse.
Optimization of the disclosure and investigation of murders is facilitated by the specification of the range of circumstances to be established in the process of investigation of murders, which should be classified according to
their logical sequence. Subject to establishment:
• cause of death, whether it is violent;
• whether there was a homicide, suicide or accident;
• who is the victim, what factual data characterize his personality;
• time, place, method, tools and means of causing death [1].
The time of death is a circumstance that must be established with an accuracy of the hour and minute. In cases where such a possibility is absent (when a skeletonized corpse is found), the time of death is set within a certain interval based on the forensic medical examination of the corpse. It is subject to clarification:
• time of infliction of bodily harm (whether they are lifetime or posthumous);
• whether the place where the corpse was found is the place where the murder was committed, whether there are negative circumstances indicating that death was caused elsewhere;
• who directly committed the murder, how many criminals were, who was an accomplice in the murder, what data each of them is characterized by;
• if a premeditated murder was committed (except for murders in excess of the limits of necessary self-
defense and in a state of strong mental excitement), then were there persons who provided an unpromised cover in advance;
• motives of murder, form of
guilt;
• the nature and amount of damage caused by the murder. In this case, in addition to the obvious physical damage, we can talk about causing material damage (murder of the breadwinner: in an attempted murder, when the victim became disabled);
• circumstances mitigating and aggravating liability;
• circumstances that contributed to the commission of the crime, etc.
The listed circumstances to be clarified in the investigation of murders are not exhaustive. They can be concretized and expanded depending on the circumstances of the case under investigation: from the kind and type of death, the cause and time of its occurrence, the tools used and other conditions. The above list of circumstances can be adjusted taking into account the individual characteristics of the murder victim and the offender. In each specific case, it may be necessary to clarify other circumstances, including those related to the commission of other crimes [2].
As already noted, assassinations are characterized by careful preparation. In this regard, it is recommended to make every effort to clarify the following issues:
• whether the offender made preliminary reconnaissance, studying the lifestyle of the intended victim, the time and routes of the normal movement of the person concerned, the place of his leisure time, receiving information about his use of vehicles, the organization of security, the location at one time or another;
• what technical means were acquired by the criminal for the purpose of committing a murder and hiding his tracks;
• how the named funds were acquired;
• whether the offender made training to improve the killing skill and if so, where, when, with whose help they were carried out;
• whether a detailed murder plan was developed, in the positive case, what exactly was provided for -the time, place, method, means of murder, actions with the corpse and to hide the traces of the crime, ways of arriving at the scene and leaving it, the point of arrival of the criminal after the murder , being in which was foreseen in advance as a measure that impedes the investigation [3].
Also in the process of investigating murders, the investigator must establish a number of circumstances, the range of which is largely determined by the specifics of these crimes.
General circumstances. Are established in all cases of committing these crimes:
• the exact place and time of the crime (the address of the premises or coordinates of the area, day, hour, and, if possible, minutes, the duration of the crime);
• actions of the offender to prepare a crime;
• instruments of murder, other objects and means used by a criminal in the commission of a crime;
• mechanism for committing a crime;
• actions of the offender to conceal the crime and his participation in it;
• the presence of a causal link between the actions of the offender and the resulting consequences,
• the nature of the intention of the offender, the purpose and motives of his actions;
• the identity of the perpetrator, characterizing his data,
• the personality of the victim, characterizing his data, including the victimological aspect of behavior.
Circumstances characteristic of certain types of crimes. Subject to establishment:
• when a crime is committed by a group - the role of each participant in the crime;
• upon discovery of parts of a dismembered corpse - the belonging of all discovered parts to one body, the method and mechanism of dismemberment, the identity of the victim;
• with mercenary motives for the murder - the nature and amount of damage;
• in cases of committing a murder in a state of intense emotional excitement or exceeding the limits of necessary defense - the mental state of the perpetrator and the reality of the attack from which he defended.
The following situations are most common in the investigation of murders.
• at the time of the initiation of the criminal case, the person who committed the crime is not known to the investigation;
• at the time of the initiation of the criminal case, the person who committed the crime is known to the investigation. In addition, the specificity of the investigative situation is influenced by the period of time elapsed from the moment the crime was committed to the
beginning of the investigation, and a number of other factors [4].
In the event that a crime is committed by an unknown criminal, the primary task of the investigator is to detect and consolidate traces of the crime and other evidence, identify additional sources of information about the circumstances of the crime and identify the criminal. For this purpose, the scene of the incident and the corpse, the interrogation of witnesses, the examination and examination of the victim's clothing and other material evidence, the appointment of
forensic and other types of examinations are carried out.
In a situation where the criminal is known to the investigation, the main task of the investigation is to verify his involvement in the crime. The suspect is interrogated, examined, and his clothes are removed and examined. To find the clothes he was wearing at the time of the crime, as well as the items that were with him, a search is conducted at his place of residence. Forensic, biological and other investigations are carried out if necessary.
REFERENCES
1. Руководство по расследованию убийств / Авдеев М.И., Бородин С.В., Видонов Л.Г., Власов В.П., и др.; Отв. ред.: Гусев С.И.; Редкол.: Жуков А.И., Звирбуль В.К., Игнатов А.Н., Ларин А.М., Миньковский Г.М. - М.: Юрид. лит., 1977. - с.79
2. Черечукнна Л.В. Расследование убийств: Учебно-методическое пособие/МВД Украины, Луган. гос. ун-т внутр. дел им. Э.А. Дидоренко. - Луганск; РИО ЛГУВД им.
3.А. Дидоренко, 2009. -248 с. - Библиогр.: С. 237 - 247
3. Соловьев А.Б. Расследование убийства, совершенного в условиях неочевидности (методический практикум на основе конкретного уголовного дела) // Прокурорская и следственная практика. Орган генеральных прокуроров стран СНГ. - М., 2000, № 3-4. - С. 128-158
4. Багаутдинов Ф. Возбуждение уголовного дела по УПК РФ// Законность. 2002. №7
LEGAL REGULATION OF THE USE OF ELECTRONIC DOCUMENTS IN
CRIMINAL PROCEEDINGS
Boymuratov Khasan Azamat ugli,
Master of Customs Institute of the State Customs Committee
A R T I C L E I N F O A B S T R A C T_
Keywords: This article discusses how to use electronic documents
Criminal procedure, and electronic evidence in criminal proceedings.
electronic data, electronic Conclusions and suggestions for using evidence
evidence, evidence, law, electronically are also provided. information, technology.
The role and importance of modern information and communication technologies in the fight against crime and the conduct of investigations and inquiries into pre-trial investigations into the crime are invaluable. One of the most important legal reforms being implemented by the state is the improvement of criminal procedure legislation taking into account the trends of the world community's rapid development, reliable protection of citizens' rights and freedoms, public and state interests, peace and security.
President of the Republic of Uzbekistan Shavkat Mirziyoev 2020 In his address to the Parliament on January 24, he said: "Our goal is to make Uzbekistan a developed country, which we can achieve only through intensive reforms, education and innovation.
As the wise men of the East say, "The greatest riches are intelligence and knowledge, the greatest legacy is good education, and the greatest poverty is ignorance!"
We need digital knowledge and modern information technology to make progress. This will allow us to
follow the shortest path of advancement. After all, information technologies are being penetrated in all areas of the world today.
Despite the fact that our country rose by 8 positions in the International Information and Communication Technology Index in 2019, we are still far behind. Most ministries and agencies, businesses are far from digital technologies.
Of course, we know very well that the formation of a digital economy requires the necessary infrastructure, a lot of resources and labor resources. However, no matter how hard it may be, when do we not begin today? It will be too late tomorrow. Therefore, an active transition to the digital economy is the future, It will be one of our top priorities for 5 years.
Digital technology not only improves the quality of products and services, but also reduces costs. At the same time, they are an effective tool in eradicating the corruption scandal, which is the most troubling thing that bothers me. We all need to understand this.
Public and public administration, as well as in the social sphere, can be widely implemented in digital technologies, increasing efficiency and, in a word, dramatically improving people's lives[1].
It is well-known that wide use of modern information and resources in electronic form through the wide introduction of modern information and communication technologies in every area of society is established.
Decree of the President of the Republic of Uzbekistan dated May 14, 2018 "On measures to radically improve the criminal and criminal procedure legislation".
The resolution approved the Concept of Improvement of Criminal and Criminal Procedure Legislation in order to ensure full implementation of the principle of "priority of the law - punishment is inevitable".
Of the Criminal Procedure Code of the Republic of Uzbekistan
Article 81 shall be considered as evidence in a criminal case, any fact which may be established by the inquiry officer, investigator or court to determine whether a socially dangerous act occurred, the innocence of the person who committed the act, and other circumstances relevant for the proper resolution of the caseand this information is determined by the testimony of a witness, victim, suspect, accused, defendant, expert opinion, physical evidence, audio recordings, video recordings, film and photographs, records of investigative and judicial acts and other documents.[2].
However, the criminal procedure law does not contain procedural rules for the recognition of "electronic data" as evidence.
It is well known that evidence is important at the stage of evidence consisting of collecting, verifying and evaluating evidence to determine the facts relevant to a legal, reasonable and equitable resolution of a criminal case. [3].
In accordance with criminal procedure law, one of the most important stages of criminal proceedings is the stage of pre-trial investigation, which is conducted prior to the initiation of a criminal case, and the importance of the criminal case carried out by the investigator and prosecutor in strict compliance with criminal procedural legislation. collecting, verifying, recording and evaluating factual data available.
Interrogation of the suspect, accused, defendant, witness, victim, expert, one of the preliminary investigative actions; confrontation; presentation for identification; verification of testimony at the crime scene; withdrawal; search; browse; to testify; exhumation of a corpse; conduct experiments; sampling for expert research; appointment of examination and inspection; to accept provided objects and documents; evidence from
investigative actions, such as hearing conversations over phones and other communication devices.
Criminal Procedure Code of the Republic of Uzbekistan on mandatory compliance by the bodies of preliminary investigation with the norms of criminal procedure law in each criminal proceeding the requirements set out in Article 11, It is also important to adhere strictly to the collection, verification and evaluation of evidence, and any deviation from a clear and consistent enforcement of the law will result in the admission of irrelevant evidence, whatever the reason.
2012 Plenum of the Supreme Court of the Republic of Uzbekistan December 13, "On Some Issues of Application of Criminal Legislation on Physical Evidence" Paragraph 2 of the Decision No.17 identifies material facts or signs that may serve as a basis for determining the facts of a criminal case and that the subject is a weapon, the subject of a criminal act, as a physical evidence. It is established that the property, money and other valuables obtained through criminal proceeds after the commission of a criminal act are recognized. [4].
Paragraph 9 of this Decision states that "information storage devices" (telephone sets, memory cards), which will be destroyed after
copying the information not prohibited by law, shall be destroyed upon transfer to such owner or their representative.
The availability of electronic data storage facilities (computers, telephones, memory cards, and other electronic and electronic means) that are relevant to the case in scientific sources can be stated as physical evidence and "electronic data" as "electronic (digital) evidence";
According to information and technology approaches, "electronic data" means the understanding of electronic applications on computers, telephones, memory cards and other electronic devices, electronic mails and documents, audio and video files, Internet and social networks, and other electronic applications. [5].
It has also been shown that electronic evidence can be understood only as an object that exists in the electronic region and has the content of information [6].
Electronic documents are allowed in criminal proceedings, as is often the case with other documents, because they are outside the scope of the criminal procedure through investigations and other procedural actions during the normal course of business. Other participants in the case have the right to collect and
present evidence. Electronic documents can be used from the initiation of a criminal case to appealing court decisions and used as evidence at all stages of criminal proceedings. [7].
As for the "electronic data" and their classification and the role of this type of information in the criminal justice system, the information technology literature is as follows.
In particular, it is possible to state that although national legislation and theory have provided guidelines concerning the concept and definition of electronic document, the theory or rules regarding the concept of "electronic information" have not been provided.
However, in the foreign literature, the concept of "electronic data" is as follows: electronic data is an image of the present state of the computer, in which it is written, created, and presented in a formally and specifically formulated artificial language. However, the concept of "electronic data" is more accurate than the concept of "information (information)", all of which are abstract models of information exchange. [8].
Currently, according to industry legislation, the concept of "electronic information" is used in close proximity to the notions of "electronic document", "electronic digital
signature", "electronic message", "electronic data carrier".
It is important to understand "electronic data" as computer, mobile phone, memory cards and other electronic software, electronic mail and documents, audio and video files, internet and social networks, and other electronic applications, as information and technology approaches accordingly.
However, the criminal procedure law does not contain procedural rules for the recognition of "electronic data" as evidence.
As for the "electronic evidence", referring to industry-specific sources, the software may be automated, stored and stored on electronic or technical devices or other types of electronic data, depending on the nature of the software, as a set of digital signs or signals. important electronic data
can be considered as electronic evidence.
In conclusion, summarizing the above, we can state the following:
- to define the procedural legal definition of the concept of "electronic evidence" in criminal procedural legislation as a type of evidence;
- development of procedural rules that determine the procedure for collecting, verifying and integrating "electronic evidence" in the criminal phase of the criminal procedure;
- it is advisable to introduce an "electronic record" that is compiled by an electronic digital signature on investigative actions carried out by an investigating officer, investigator, prosecutor and judge collecting "electronic evidence" in the criminal case prior to the investigation.
REFERENCES:
1. Statement by the President of the Republic of Uzbekistan Sh.Mirziyoev to the Oliy Majlis on January 24, 2020
2. Criminal Procedure Code of the Republic of Uzbekistan // National Database of Legislation. www.lex.uz
3. AA Khujanazarov. The article "General principles of using electronic data in criminal-procedural proof". Journal of Legal Studies. http://dx.doi.org/10.26739/2181-9130-2019-7-3
4. Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan dated August 24, 2018 "On Some Issues of Application of Criminal Procedure Law on the Admissibility of Evidence" // National Database of Legislation. www.lex.uz
5. AA Khujanazarov. Article "Use of electronic data in preliminary investigation" Journal of Legal Studies. http://dx.doi.org/10.26739/2181-9130-2019-8-10
6. Kukarnikova T.E. Electronic documentation in criminal procedure and forensic science: autoref. Voronezh: Voronezh. Stat. un-t, 2003, p 67-70.
7. Polyakova TA, Tulskaya O. V., Filatova L. V. "Problems of introduction of electronic document management in the legal process and creation of legal conditions for the use of electronic documents as evidence" // Problems of legal information: scientific and practical. journal 2007. No. 1. page 58.
8. Kuznetsov P.U. General information Flower. -M .: Search. «Prospect», 2014 r. - P.20. (Kuznetsov PU Fundamentals of Information Law. Textbook. -M .: Publishing House. Prospect, 2014 - p.20
12.00.10 - International Law
RESTORATIVE MODEL OF JUVENILE JUSTICE AS AN ALTERNATIVE TO CRIMINAL PENALTIES: INTERNATIONAL STANDARDS AND
NATIONAL LEGISLATION
Miruktamova Feruza Lutfullayevna,
Lecturer of Tashkent State Law University E-mail: [email protected]
A R T I C L E I N F O
A B S T R A C T
Keywords:
juvenile justice, minors, compulsory educational measures, restorative justice, juvenile offenders.
The article reveals the features of international standards of restorative approach to criminal proceedings against minors. It presents a general description of the concept of juvenile restorative justice in the course of providing examples of the most effective practices of its application in various countries. Issues related to the introduction of restorative justice in cases involving minors in domestic criminal proceedings are considered. The author analyzes the experience of a number of European countries in the use of elements of restorative justice when working with minors who have committed crimes, and thereby draw the attention of domestic lawmakers and law enforcement officers to the problem of improving measures of criminal law impact on minors who have committed crimes in the Republic of Uzbekistan.
INTRODUCTION
In the last decades of the XX century, of the priorities of the world community's development has been to ensure proper protection of the rights and interests of minors, to prevent crimes among this category of persons and to protect the rights of those who are in conflict with the law.
Authoritative international legal acts establish the principle of enhanced legal protection of minors, which requires the creation of a comprehensive and effective organizational structure designed exclusively for working with these individuals. As stated in article 40, paragraph 3, of the United Nations
Convention on the Rights of the Child, states parties should seek to promote the establishment of laws, procedures, bodies and institutions that are directly relevant to children in conflict with criminal law (paragraph 90 of the General Comment). This is also stated in p. 2.3 of the Beijing rules: «Efforts should be made within each national jurisdiction to enact a set of laws, rules and regulations that relate directly to juvenile offenders and institutions and bodies responsible for the administration of juvenile justice». Such a special complex system of protection of the rights and legitimate interests of minors is called Juvenile Justice. [1]
The juvenile justice system, which complies with international standards and principles, promotes, inter alia, the use of diversion measures and other alternative measures in place of pre-trial and subsequent incarceration and restorative justice for juvenile offenders. The Committee on the rights of the child clearly States that
such a juvenile justice system takes into account both the best interests of juvenile offenders and the interests of society. The use of pre -trial and post-trial deprivation of liberty against minors not as a measure of last resort and/or not for the shortest appropriate period of time is a violation of article 37(B) of the UN Convention on the Rights of the Child.
International juvenile justice instruments promote restorative justice approaches for juvenile offenders (see the quote from the Lima Declaration (2009) in the box). The Lima Declaration defines restorative justice for minors as "a way to treat children in conflict with the law in order to compensate for individual, relational and social damage caused by a crime committed". This goal requires a process in which the child in conflict with the law, the child victim and, if necessary, other individuals and members of the community are actively involved in resolving issues related to the crime.
"Restorative justice should be applied at all stages of the juvenile justice process, either as an alternative measure or in addition to other measures. At the police level, one of the options should be to send the child to the restorative justice process."
Lima Declaration on Restorative Justice
»------
MAIN BODY The conversation among _practitioners and legal scholars
about the goals and objectives of justice has been going on for more than a century. The problems associated with traditional methods of resolving criminal cases are well known and indisputable. Criminal proceedings have obvious drawbacks, while their positive aspects are barely noticeable for both participants and outside observers. Therefore, it is logical that serious efforts are being made to replace formal criminal proceedings with alternative methods that are more promising in terms of achieving positive results.
Currently, instead of the traditional models of inquisitorial (punitive) justice, a new concept of justice is being formed, involving the use of non-judicial, alternative practices for resolving legal conflicts, which in international practice has been called "restorative justice".
This term refers to various practical models of response to crimes that are United by a common goal and ideology: the focus on psychological and mental healing of victims, the re-socialization of offenders and the restoration of relations between them, society and the state.
As noted by D. M. Gromet, restorative justice is a different approach to achieving justice than the traditional judicial system. The
judicial system relies on punitive measures and does not take into account the interests of the victim, while restorative justice focuses on compensating for the harm caused by the crime, returning the offender to society and allowing all parties to the process (the offender, the victim and society) to participate directly in the administration of justice. [2]
Many countries' criminal justice systems are "punitive" - that is, they are concerned with retribution and punishment of offenders. Punitive justice is more interested in the crime itself, rather than the people involved in the crime. However, this is not always in the best interests of the victim, the offender and society as a whole. The parties involved may feel more alienated, damaged, neglected, disarmed, and feel less secure and engaged in society.
A much better system is "restorative justice". This approach focuses on restoring damaged relationships (between the victim, the offender, and society) to a state prior to the Commission of the crime in order to make everything as fair as possible. It puts forward methods for reparations, reconciliation of the parties, restoration of harmony in society and reassurance of the parties. The original goal of restorative justice is healing and correction. It emphasizes the
importance of the active participation of the offender, the victim and society in listening to the circumstances and feelings of all parties and finding out, as well as implementing, decisions that balance the best interests of all concerned. The offender is responsible for his crime and compensates the victim and the community. This makes remorse, forgiveness, and integration possible. Restorative justice emphasizes the need for a "proportionate" response that is much more rational, effective, and designed to reduce reoffending.
Replacing criminal
responsibility with alternative forms of corrective action means removing children who violate the law from the formal criminal justice system, and in particular from formal trials and criminal detention.
Restorative justice is suitable for people of all ages, but it is especially important for young offenders, as it provides a long-term impact on their emotional and moral development, which is more positive than negative: it can stop the process of turning a young offender into an adult criminal.
Wright notes: "Punitive measures are not very effective in deterring criminals, but if the crime has already been committed, they deter the criminal from admitting guilt." [3] Braithwaite confirms this point of view: "Criminal justice, with its commitment to punishments, becomes, in fact, the main obstacle to the establishment of the truth, since it encourages denial of confessions." [4] Ostendorf notes: "Society does not consider criminals either in their social and family environment, or in a specific crime situation. Criminals represent evil, they commit crimes without any reason. The crime becomes the center of attention, then it is transferred to the criminal." [5] But when the criminal and the victim communicate, the criminal is again presented/seen/ becomes/a person, that is, "if there are victims, then responsibility passes from one to the other, as if from one train car to another." [6]
The table below shows the advantages of restorative justice compared to approaches used in the formal justice system.
Justice Punitive Rehabilitative Restorative
Density Crime Criminal Relationships
Reaction Punishment Correction Compensation
Goal Intimidation Conformism Recovery
The position of the victims Secondary Secondary Main
Social context Authoritarian Social security Democratic
Child's reaction Anger Dependence Responsibility
Restorative justice recognizes that not all offenders will choose to interact. Therefore, there must be an external official who will be authorized to make decisions for offenders who do not want to cooperate.
Restorative justice is a broad concept. It can be taken at the pre-trial stage, at the sentencing stage, after the sentencing decision is made, and in a number of other situations outside the scope of legal proceedings (such as conflict management in schools or working with children at risk).
Restorative justice, according to UNODC, is based on the following ideas:
any response to an offence should make up for the damage caused to the victim (s) as much as possible.
perpetrators of the offence must understand that such harmful behaviour is not acceptable, and
must also be aware of the impact on the victim and the community;
the offender can and should be held accountable for their actions;
victims should participate in the judicial system and be able to Express their needs and concerns, as well as participate in the process of determining further actions to be taken by the offender in order to make amends;
the community must be responsible and participate in the justice process. [7]
The principle of restorative justice is to satisfy the interests of the victim of a crime. Victims of crimes rarely receive compensation for damages, the formal procedure for bringing the guilty person to criminal responsibility and punishing them often does not bring the victim either moral or material compensation, and does not contribute to the restoration of social justice in relation to the interests of a particular victim.
In The recommendation of September 15, 1999 The Committee of Ministers to the member States of the Council of Europe on the use of mediation in criminal justice defines mediation as "any procedural measures that allow the victim and the person subject to criminal prosecution to actively participate in overcoming difficulties arising from the Commission of a crime, with the direct participation of an independent third party and provided that the parties to the conflict voluntarily agree to the use of these measures».
Legislation formalizing and legalizing mediation appeared later. In France, this was The law of January 4, 1993, developed By the law of June 23, 1999 (in both cases, it was about changes and additions to the CPC). In Belgium, the law of February 10, 1994, which also supplemented the code of criminal procedure, and a number of by -laws.
To begin with, we will highlight the common features of the Belgian and French mediation options:
the procedural prerequisite for the development of mediation practice was the principle of expediency of initiating criminal prosecution and, accordingly, the widespread use of the institution of refusal from criminal prosecution (classement sans suite) not on
formal grounds, but on the grounds of its inexpediency.
This circumstance should also be taken into account: with the help of alternatives to criminal prosecution, including mediation, the legislator not only seeks to mitigate the repressive nature of criminal law, but also fights the negative consequences of leaving a significant number of criminal acts without a clear response from the state;
the basic idea of mediation remains unchanged.
Schematically, it looks like this: the Prosecutor, when making a decision to initiate criminal prosecution in one form or another, initiates a mediation (reconciliation) procedure. The final decision is made depending on the success or failure of its implementation (the criterion is to reach an agreement);
mediation is used in a very wide range of cases with minimal formal restrictions. In France, there are no such restrictions at all. In Belgium, these are cases of crimes punishable by up to 20 years in prison.
In Belgium, mediation functions are assigned directly to the Prosecutor's office (in order to avoid the "privatization" of criminal justice). For this purpose, a special position was created in the States of
Prosecutor's offices - the first assistant Prosecutor (magistrat de liaison), responsible for mediation. In addition, special positions of mediation advisers (professional criminologists) and mediation assistants (sociologists) have been created in Prosecutor's offices. Strictly speaking, it is the latter who take concrete actions to reconcile the victim and the person subject to criminal prosecution;
b) the actual mediation procedure differs significantly, including the degree of its formalization.
Juvenile social rehabilitation infrastructure is focused on finding the right balance between the rights of offenders, victims and the interests of society in public safety and crime prevention.
The main components of restorative justice are:
early prevention of juvenile delinquency;
focus on removing offenders from the formal criminal justice system;
use of punitive measures against minors, but mainly alternative measures of influence;
deprivation of liberty should be used as an exclusive means of response and to the maximum extent possible;
minors must be provided with unhindered access to legal assistance under no circumstances can the death penalty, life imprisonment, torture or corporal punishment be applied to minors;
the public, civil society institutions, the judiciary, and law enforcement agencies should be fully informed and, most importantly, involved in the system of removing juvenile justice from the General justice system;
special rehabilitation and adaptation programs and technologies should be widely used for minors in conflict with the law.
This is directly related to the model that we are building. Since the juvenile social rehabilitation infrastructure is only being formed in Uzbekistan.
National legislation in Uzbekistan includes certain restorative justice measures that can be applied in cases where minors come into conflict with the law, including in combination with measures of diversion (article 87 of the Criminal Code and article 66(1) of the Criminal code). Article 382 "suspension of criminal proceedings" of the criminal procedure code of Uzbekistan does not refer to any approaches to Restorative justice, but also does not prohibit such an approach in relation to juvenile
offenders. This article of the code of Criminal procedure provides that the Prosecutor may refuse to initiate criminal proceedings or suspend the proceedings. The Prosecutor may use this power in relation to a minor in conflict with the law.
In order to apply alternative measures to protect children in conflict with the law, in March 2019, the government of Uzbekistan launched an innovative project on measures of diversion and restorative justice for minors in conflict with the law in the Chilanzar district of Tashkent. The project aims to implement the two main international standards of juvenile justice mentioned in the UN Convention on the rights of the child:
• incarceration of children under the age of 18 should only be used as a last resort;
• children under the age of 18 should be treated outside the formal criminal justice system, where appropriate or possible.
The pilot project responds to the recommendations on the administration of juvenile justice made by the Committee on the rights of the child in its latest report. The Committee on the rights of the child urges the government of Uzbekistan to adopt approaches that involve diversion from the justice system, as well as restorative justice
approaches, in the form of mediation and community-based work (see comment 69(e) and recommendation 70(A) (d)). [8]
Uzbekistan's legislation
stipulates three ages of criminal responsibility. The General age of criminal responsibility is 16 years. However, children are criminally liable from the age of 13 for premeditated murder with aggravating circumstances and, in addition, children from the age of 14 are criminally liable for specific crimes, including premeditated murder, intentional infliction of serious and moderate bodily harm, rape, unnatural forced sexual intercourse, kidnapping, banditry, extortion, robbery, theft, intentional destruction or damage to property under certain aggravating circumstances, escape from prison, illegal possession of narcotic drugs, hooliganism and other crimes (article 17 of The criminal code of the Republic of Uzbekistan).
In Accordance with the legislation of the Republic of Uzbekistan, children are subject to administrative responsibility after they reach the age of 16 and commit an administrative offense, namely: petty theft, simple hooliganism, disobeying legal orders of a police officer, illegal possession of firearms and violation of traffic rules (article 13
of the code of administrative responsibility). Conceptually, minors between the ages of 16 and 18 who have committed an administrative offense cannot be subject to removal measures. Diversion measures are linked to the juvenile justice system and mean that "juvenile offenders are conditionally transferred from a formal trial to a different way of resolving the issue, which allows many - perhaps most - to have their cases handled by non-judicial authorities, thus avoiding the negative consequences of a formal trial and criminal record, provided that human rights and legal guarantees are fully respected". The interdepartmental Commission on juvenile affairs, which is a non-judicial body, is designated as a specialized body for reviewing and determining cases of administrative offenses committed by children, in accordance with the code of
administrative responsibility and the regulations on Interdepartmental commissions on juvenile Affairs. This regulation regulates the activities of commissions at the national, regional and district levels, and provides for measures that can be taken by commissions in relation to minors who have committed administrative offenses. [9] Such a measure of influence as "transfer of a minor under the supervision of parents or persons replacing them, or public educators, as well as under the supervision of the labor collective or NGOs" was used as the legal basis for the pilot on the application of measures of diversion/restorative justice. [10]
Diversion measures have a number of advantages. This can be seen in the table below when compared with national legislation of Uzbekistan.
Difference between diversion measures and other
measures
Diversion measures Reconciliation (article 66-1 of the criminal code of the Republic of Uzbekistan) to-mpulsDry measures [articles JJ/-EB of thecriminalcodeafthellepublicor Uit>*KiJtin)
Thcyipn he jppted throuE^nut entiit criminal Jurtce precis lufltil frwfirsi L'jjn hddrliyglntha usd) it ran be ipnlerf oul at Ihe stJie of nqulry. preinna^ M-utsilgAilLr. ¿nd lrlal |t<tare thb ojuri it t&a o.ic to thb rannJtfiloo r wi| ¿in be ippked by the [Gfrt >1 Him sl^gr f nryi if Mlif--. of thbCHA IhCÜLit
May b* jftdiad wiihüut ihs- consänc if chd injuivd parcy Ttw ccnidni jf chd Injured parrv is fdquirdd
TT» Oji'iiii'i" üf rhd d££i iätfd ükrXs ii I'Ol f«qüir«d
TIVi iriAdfiE redfätlinfj minors to ft j i'i - j J d k i JI.1' M Iii 11 - Recürciijllon ii Cdfrifid Out Viith thft ¡rlSiSUiift Lif Idw Applied äiükrtivfllv b^ thd iCtrt
protective (sural) bodies. thereby protecting them from enforcement PEendesrthe touri ihfi rig jiiyi impact of participating in tho |ustlcd pracMS.
Require- the voluntary and free consent cfthe mnor jnd ho The consent of the minor pnd his le^sl representatives is The consent of the minor and Ns Icep' reptesentsllv« b
ligdlidfidSdiitKivii idQurdd rüt i dQüifdd
ThcY jniply the fldiw psrlJopation of q miner In their In partite, the minorities noi t-a^e pprt h recondition. the The m«wr does noi ppriicipflte ti the choke cf
chciu di\d iiXiidii Chdii responsibility iii'Ji of r; ddEidüd by tfw Itigal i dpi'dSdfitrivi Lin-^uhli^- rYiddtui«. thdii chcitt- ii fflddd duLljtihiily
bp the ccurt
Tfrs m«ir5 thpt; the conditions are n-wt by the m^ror In practice. recondllptJon c Irnitedtornpterlplccmpenspbon The means jbpWpe c« of the th-ee rr^ewur«
hi^Sdlf. which ifi-dirt'.cd St his iihibir^iüV ■iirttdj'iliö'i. jfld düdS i''JI p-D-jidd CO;'idiliO''i! foi i'dhdbilildt'Oii. prOiiddd foiin dniiLteSS Ol" thd Criminal ic-di- a rtliilO-;.
restoration dF the dernpce caused bv the c*ime. as wdl w relntegrptlon and prevention of re-Cornmlssion of the crime includlnE p!pc!"e the mlno* in -a closed speclplaed
prevention of re-Commioaten oF crimes n i|he Future educpbonpl Inhibition
■rnplemenipticn of the nemoral mepsures mepns the No crmilnpl record (means eswrnphon from cHmraJ lipbiktyj tdrrniiidtOi'i tif Cfiffih'idi pi'OSyluliliof Chd triTtüt ¡id fid absence of -J c*im«vil record
too cdmrwJ record (fneons reiepse from criminal punkhnwrt)
In General, restorative justice approaches can be applied at all stages of the juvenile justice process. Thus, according to the decree of the President of the Republic of Uzbekistan "On measures for further reform of the judicial and legal system, strengthening guarantees of reliable protection of citizens 'rights and freedoms" dated October 21, 2016, the President called for expanding the use of reconciliation practices. [11] However, juvenile offenders are not explicitly mentioned in this decree.
CONCLUSION
Summing up, we can conclude that, response to crimes, establishes
links of cooperation not with a "clean" criminal process, but with a criminal process that is already in the social rehabilitation infrastructure. [12] A very significant detail is that a special attitude to the perpetrator of a crime is that the first priority in the event of a crime is the need to restore the moral, psychological and material damage caused to the victim by minors and involve the offender in social rehabilitation programs, and not punishment by the state.
Analysis of the application of juvenile restorative justice systems has shown that when implementing them, it is necessary:
first, to resolve the issue of adopting a new version of the
Criminal code, which would implement the basic requirements of international standards in the field of juvenile justice (minimum age of criminal responsibility, the possibility of applying alternative punishments, etc.),
secondly, you should create a specialized (secondary) socio-pedagogical institutions financed from the budget of the Ministry of justice to prepare professionals with skills in the area of juvenile justice,
thirdly, to develop the Institute of reconciliation of the victim with the offender (mediation) in accordance with the principle of adequacy of punishment and the severity of the crime, allowing to bear personal responsibility before the victims.
And this is directly related to the model that we are building. Since the juvenile social rehabilitation
infrastructure is only being formed in Uzbekistan.
Restorative justice approaches benefit not only children who have committed a crime, but also victims, their families, and society as a whole. In accordance with restorative justice approaches, boys and girls in conflict with the law are fully responsible for their actions and compensation for the harm caused by their crime. Restorative justice approaches promote the child's reintegration into society and help them play a constructive role in society. It takes the responsibility of juvenile offenders seriously and can thereby strengthen the child's respect for and understanding of the human rights and fundamental freedoms of others, in particular the victim (child) and other members of society affected by the crime.
REFERENCES
1. The concept of "juvenile justice" (from lat. juvenile - young, youthful, young) is based on the category of "[minors", which is understood as a special age period in the life of an individual, limited by a time frame, and having a certain physical, mental, social and legal specifics.
2. Gromet, D. M. Psychological perspectives on the place of restorative justice in criminal justice systems // Social Psychology of Punishment of Crime / Oswald M. E., Bieneck, S., Hupfeld-Heinemann, J. Chichester: Wiley-Blackwell, 2009. Pp. 39-54.
3. Wright, M. Is it time to question the concept of punishment? // Repositioning Restorative Justice / Walgrave L. Cullomptom: Willan, 2003. Pp. 3-23.
4. Braithwaite, J. Between proportionality and impunity: confrontation - truth -prevention // Criminology 2005. № 43. Pp. 283-306.
5. Ostendorf, H. The Breakup of Dichotomy between Offender and Victim // Restorative Justice - A European and Schleswig- Holsteinian Perspective. Schleswig-Holstein Association for Social Responsibility in Criminal Justice; Victim and Offender Treatment,
Schriftenreihe Soziale Strafrechtspflege / Lummer R., Hagemann, O., Tein, J., 2011. pp. 24-33.
6. Кульман А., Кури Х. Восстановительное правосудие как альтернатива уголовным наказаниям - уроки истории // Актуальные проблемы экономики и права. 2016. Т. 10, № 4. С. 126-149. DOI: 10.21202/1993-047X.10.2016.4.126-149.
7. UNODC, Handbook on Restorative Justice Programmes, 2006.
8. Concluding observations on the combined third and fourth periodic reports of Uzbekistan, adopted by the Committee on the Rights of the Child at its sixty-third session (27 May-14 June 2013).
9. Regulations on commissions for juvenile Affairs, Appendix No. 3 to the Presidential decree 'On measures for further improvement of the system of crime prevention and control #2833 of March 14, 2017.
10. Article 21 of the Regulations on the interdepartmental commissions on cases of minors.
11. The term 'restorative justice ' is not used in national legislation. Instead, "reconciliation of the parties" is used».
12. UNICEF, Implementation Handbook for the Convention on the Rights of the Child: 3rd Edition, 2007.
THE IMPACT OF DIGITAL TECHNOLOGIES ON HUMAN RIGHTS
Khamdamova Firuza,
Senior Lecturer of the International Law and Human Rights Department of Tashkent State University of Law E-mail: f.xamdamova@tsul. uz
A R T I C L E I N F O
A B S T R A C T
Keywords: digital human rights, Internet right, digital divide, Information Code, digital literacy programs, personal data protection
The article is devoted to the impact of digital technologies on human rights. The author underlines that on the one hand digital technologies have positive impact on human rights, on the other hand there are negative consequences of digitalization on human rights. The article provides an overview of international standards as well as best foreign experiences in this regard. Special attention is paid to the consideration of measures taken in Uzbekistan in this direction. In conclusion, the author puts forward a number of recommendations for improving international and national mechanisms to ensure human rights in the period of digital transformation.
INTRODUCTION
The ongoing digital transformation in the world, accelerated by the COVID-19 pandemic, affects all areas of life, including human rights.
On the one hand, digital technologies have a positive impact on the enjoyment of human rights, opening up new opportunities for ensuring and protecting them, as well as new areas of international
cooperation in this area. The digital revolution creates new rights in the digital space of the Internet, other information and communication technologies, gives new, sometimes unexpected, aspects of the implementation of the fundamental rights and freedoms of a citizen [1].
On the other hand, digitalization also has a negative impact, generating new threats to the realization of human rights. A
particular negative impact is the presence of digital inequality between states and within countries, which causes, to a certain extent, discrimination against certain groups of the population that do not have high-quality access to digital technologies.
Digital transformation has an impact on both the theory and practice of human rights. It promotes the emergence of new concepts and concepts in the field of human rights, new institutions and mechanisms, enriching the theory of human rights and expanding the range of research and training programs on human rights. It goes without saying that this is consolidated in international standards and in national legislation, which should reflect current trends.
MAIN BODY
First of all, this positive influence affects the realization of the right to information. Digital technologies provide a variety of sources of information - in addition to print media and television, today information is available on the official websites of government agencies and departments, institutions, as well as on social networks. It is important to note that not only government departments, but most civil society institutions are actively using the opportunities of digitalization, which
allows you to get a more complete picture of certain issues.
The creation of websites, the presence of social networks makes it possible not only to receive information, but also to express your opinion about current events. That is, digitalization also expands the possibility of freedom of expression.
Digital technologies also contribute to strengthening the interaction of state bodies and departments with citizens and civil society institutions, which is of no small importance and is one of the criteria for assessing the effectiveness of state policy in the field of human rights.
Social media and tools such as encrypted communications are helping to unite and grow human rights movements. Human rights officers can collect information on social media, in addition to the fact that human rights investigations are improved and complemented by satellite imagery, and the message encryption system enables more effective monitoring, investigation and analysis. [2]
Digital technologies have a huge impact on social and economic human rights. In particular, digitalization, the Internet, the availability of distance learning, online training courses in various fields open up many opportunities for
realizing the right to education, obtaining not only basic education, but also advanced training and retraining of personnel. It also has a beneficial effect on the employment sector, creating opportunities for working remotely and applying flexible work schedules, which is especially important in the context of quarantine and the fight against a pandemic.
In addition to enforcing the rule of law, digital technologies create new opportunities for their protection as they create new ways of handling complaints. In addition, digital technology can raise awareness of cases of human rights violations, which enhances transparency in action and accountability for human rights.
One cannot ignore the fact that the expansion of access to information contributes to the enhancement of the legal culture of society and the culture of human rights, creates new opportunities for adopting creative strategies in the field of human rights education.
Digital tools can also help us with early warning issues. The rise in incidents of hate speech and other indicators of rising tension on the Internet can serve as an important signal of impending violence. By monitoring these phenomena and
taking action quickly, we can hope to prevent violence. [2].
Thus, digital technologies have a positive impact on the provision and protection of human rights, opening up new opportunities for the realization of all categories of human rights. At the same time, digital technologies also create new threats to ensuring human rights and carry certain risks.
One of the main factors that can reduce the positive impact of digital technologies on human rights is the existence of digital inequalities that exist both between countries and within the same country, between rural and urban areas. For example, in developed countries, 81 percent of the population uses the Internet, which is more than twice the proportion of users in developing countries (40 percent), which in turn is more than twice as high as in the least developed countries (15 percent) [3, P .17]. African youth are the group with the lowest rates of connectivity. About 60 percent of boys and girls do not use the Internet, while in Europe the corresponding figure is only 4 percent. [3, P.3]. Approximately 29 percent of young people around the world - about 346 million people - do not use the Internet. [3, P.3]. In addition, the gender gap in digital access is deepening. Globally, in
2017, the proportion of men using the Internet was 12 percent higher than that of women. [3, P.4]. In addition to access to the Internet, lack of digital skills and educational attainment in general is another digital barrier.
This is especially true in the current conditions of combating the pandemic and its consequences. So, one of the ways to contain coronavirus infection is still social isolation, its measures required the partial or complete closure of educational institutions and their accompanying infrastructure. At the height of the crisis, UNESCO figures show that at the height of the crisis, nearly 1.6 billion students, or 94% of the world's student population, were hit by school closures in over 190 countries. As the UN Secretary General noted in his concept note "Education in the era of the COVID-19 pandemic and beyond", despite the delivery of lessons on radio, television and the Internet, as well as the best efforts of teachers and parents, many students are still out of reach ... Students with disabilities, minorities and low-income communities, refugees, and people in remote areas are at greatest risk of being hopelessly left behind in learning. " The UN Secretary General called for uniting efforts to restore education systems, since it is
important to reduce the degree of the existing serious digital inequality [4]. In addition, the pandemic has challenged the employment sector. The ILO estimates that only about 18% of workers perform work or work in locations that allow telecommuting. This option is not available to everyone [4].
In other words, a new group of vulnerable people is emerging -groups of the population that do not have or have very limited access to digital technologies. That is, due to digital technologies, the problem of protecting the rights of vulnerable groups of the population is aggravated.
Another critical issue of protecting human rights in the context of digitalization is the protection of information about private life. This is primarily due to the fact that in the digital environment, information about private life (as, indeed, any other) spreads much wider and much faster than before. Privacy risks are growing [5]. Information about a person and his private life can be used by intruders, for example, to steal his property, trick him into money, or plan an attack on him. The disclosure of private information can affect a person's position in society. As a social being, the attitude and reactions of other people are
important to a person: approval or condemnation, admiration or ridicule, reputation, etc. [5]
International bodies stress that the Internet is increasingly becoming a space that threatens human rights defenders. People are increasingly being attacked and abused by private actors simply because of their online activities in support of human rights. At the same time, international bodies note that this is especially true for women, who are disproportionately affected by aggressive provocative campaigns that also expose them to physical attacks in the real world [2].
In addition, digital technologies, while opening up new opportunities for freedom of expression, can at the same time have a negative impact on freedom of expression. For example, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression has regularly reported that digital technologies, including malware and spyware, also provide governments with unprecedented opportunities to interfere with the rights to freedom of opinion and expression [6]. In addition, the Special Rapporteur considers that the disconnection of users from access to the Internet, regardless of the justification presented, including on the basis of
a violation of intellectual property rights law, is disproportionate and therefore in violation of article 19, paragraph 3, of the International Covenant on Civil and Political Rights.
It is also important to note the threats posed by digital technologies, in particular, the emergence of new crimes on the Internet and with the use of modern digital technologies, new methods of criminal theft (theft) by using the credentials of the owner or other owner of property, including gaining access to such data (secretly or by deception, use of the victim's phone connected to the "mobile bank" service, authorization in the Internet payment system under the data of another person, etc.).
The most important trend is the growth in the number of international documents on human rights in the context of digitalization.
At the international level, we can already note the adoption of a number of documents on the impact of digital technologies on human rights. In particular, the UN General Assembly Resolution of December 18, 2013 № 68/167 "The right to privacy in the digital age" [7] can be noted. It should also be noted the efforts of the OECD in this direction -the Organization for Economic Cooperation and Development adopted the Guidelines on the
protection of confidentiality and cross-border transfer of personal data [8].
At the regional level, measures are also being taken in this direction. The European region is especially active in this regard. Adopted the Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108) [9]. In addition, the Council of Europe has developed guidance documents on the protection of personal data, applicable to specific technologies or industries: Guidelines for the protection of individuals in relation to the processing of personal data in the world of big data [10]; Recommendation of the Committee of Ministers of the Council of Europe on the protection of health data [11].
It is also worth noting the Joint Declaration on the Independence and Diversity of Media in the Digital Era 2018, adopted jointly by such structures as the United Nations (UN) Special Rapporteur on freedom of opinion and expression, the Representative of the Organization for Security and Cooperation in Europe ( OSCE) on Freedom of the Media, the Special Rapporteur of the Organization of American States (OAS) on Freedom of Expression, and the African Commission on Human and Peoples' Rights
(ACHPR) Special Rapporteur on Freedom of Expression and Freedom of Information. [12]
In the above and other documents adopted on this issue, the concept of "digital human rights" is increasingly encountered. That is, one of the consequences of the influence of digital technologies was the emergence of the concept of "digital human rights". Digital rights are usually understood as the rights of citizens to access, use, create and publish digital works, the right to free access to the Internet (other communication networks) using computers and other electronic devices [1]. With the advent of digital technologies, the so-called digital rights arise - the right to access the Internet, the right to be forgotten, the right to protection from unwanted information, which have already received legislative recognition in different countries [13].
Among these rights, the right to the Internet is becoming increasingly important, which is now considered a separate human right. The Internet not only influences the realization of human rights, creating new threats to ensure them, but also opening up new opportunities for their implementation, but is also gradually gaining consolidation and recognition as a separate right, one of the most important in the context
of digital transformation. In this regard, it should be noted that the 88 recommendations made by the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression in the May 2011 report of the Human Rights Council from the United Nations General Assembly include several Internet access question. In his report, the Special Rapporteur notes that, unlike any other media, the Internet allows people to seek, receive and impart information and ideas of all kinds instantly and inexpensively across national borders. Significantly empowering people to exercise their right to freedom of opinion and expression, which is a "means of realizing" other human rights. The Special Rapporteur calls on all States to ensure constant access to the Internet, including during political unrest. Given that the Internet has become an indispensable tool for realizing a range of human rights, tackling inequality and accelerating human development and progress, ensuring universal access to the Internet should be a priority for all states. These recommendations have led to the assumption that Internet access itself is or should become a fundamental human right. [6]
Global trends also influence the development of national legislation in this direction. In the Constitutions of many countries of the world, human rights are enshrined in the information society. In addition, many countries enact separate laws, such as the Personal Data Laws. Particular attention is paid to the protection of children's rights in the digital environment. For example, the United States has passed the Children's Online Privacy Protection Act, which outlines the responsibilities of operators of websites and online services aimed at children under 13. The UK has developed a code of practice for online services for age-appropriate design (Age Appropriate Design: Code of Practice for Online Services). The document sets out standards for games, mobile applications and other digital services that developers must follow to protect children. [14]
The Republic of Uzbekistan is a party to over 70 international human rights treaties and is consistently taking measures to ensure them, including taking into account digital technologies.
Currently, the legal framework for digital transformation is being formed. The Strategy "Digital Uzbekistan-2030" has been approved by the Decree of the
President of the Republic of Uzbekistan # 6079 dated from October 5, 2020 [15]. The Concept for the Development of Bodies and Institutions of Justice in 2020 - 2024 was adopted, which provides for measures for the phased digitalization of databases of bodies and institutions of justice, the transfer of public services into electronic form and the introduction of a "virtual justice" system [16].
In all concepts in other areas, special attention is also paid to the introduction and widespread use of digital technologies. So, in the Concept for the development of higher education, the "Introduction of digital technologies and modern methods in the educational process" is fixed as a separate chapter (Chapter 3, paragraph 2.) [17]. This should not only improve the quality of education, but also expand access to education.
Laws on "On guarantees and freedom of access to information" [18], "On the protection of personal data" [19], "On the protection of children from information harmful to health" [20] and others have been adopted. persons "was adopted in a new edition, where the concept of" electronic circulation "was fixed [21]. The law establishes the right to apply in electronic form, which can facilitate the application procedure.
Special attention is paid to the introduction of information and communication tools in the National Strategy on Human Rights [22].
Among the measures taken, the following measures can also be mentioned:
- creation of websites for all government agencies and departments, which expands access to information;
- creation of a platform www.regulation.gov.uz, where draft regulations are posted, about which the public can express their opinion;
- creation of the site "Mening fikrim", where citizens can put forward their initiatives to improve legislation or public policy;
- creation of an electronic justice system (E-sud) for going to courts, which helps to save time and financial costs for citizens, if necessary, go to court to protect their rights;
- expansion of the system of rendering free legal aid to the population, the possibilities of the legal information system "Advice.uz", as well as support of the nongovernmental non-profit organization "Madad", which provides citizens with free legal advice.
Particular attention is paid to training and instilling skills in working with digital technologies.
The above measures help to ensure and protect human rights in the country.
CONCLUSION
Most of the international instruments in the field of human rights protection were adopted long before the start of the rapid digitalization of all areas of human life. This necessitates the development of new human rights standards, taking into account the digital transformation. At the same time, it is important to consider that the pandemic has accelerated digitalization and aggravated some of its consequences. This is especially true for bridging the digital divide, because otherwise the economic divide will deepen.
In this regard, the initiative proposed by Uzbekistan at the 75th session of the UN General Assembly on the adoption of the International Code on Voluntary Commitments of States [23] will contribute to strengthening global partnership and preventing the gap between countries, including the digital divide and ensuring human rights at the proper level and preventing the deterioration of the level life and well-being of people. The Code will serve as a legal basis for uniting the efforts of states in this direction. Even if it is adopted as a recommendatory document, and not mandatory, its
political significance will be significant. At the same time, it should contain not only the obligations of developed countries to developing countries in a crisis provoked by a pandemic. The Code should define new principles and directions of cooperation, forms and formats of interaction to achieve the above objectives. We can say that this initiative has become a logical continuation of all calls from the international community to unite efforts.
In addition to bridging the digital divide at the global level, it is important to take action to bridge the gap at the national level. As UN High Commissioner for Human Rights Michelle Bachelet notes, "Human rights lawyers, computer scientists and engineers, business representatives and governmental and intergovernmental bodies need to work together to develop methods to assess the impact on the enjoyment of human rights and other systems. analysis and guidance that can address the specific requirements of digital systems.... Above all, the responsibility to protect human rights should be a clear priority for all stakeholders: states, developers, scientists, investors, businesses and civil society. [2]
In addition, UN High Commissioner for Human Rights Michelle Bachelet stresses the role of youth in this process: "We need to be able to count on the innovative and unifying power of youth. Too often, young people are excluded from decision-making processes: they are not even invited to the negotiating table "[2]. The significance of Uzbekistan's initiative on the adoption of the UN Convention on the Rights of Youth, put forward at the 72nd session of the UN General Assembly, increases even more [24].
As noted above, persons without access to digital technologies can be considered a vulnerable category of the population. Perhaps the UN human rights bodies should adopt new general
recommendations dedicated to these particular categories of the population.
At the national level, it is important to take measures to
systematize information legislation, get rid of repetitions and bring its conceptual apparatus into a harmonious, consistent state. One of the options for such a systematization could be the adoption of the Information Code. At the same time, such issues as digital human rights, protection of children's rights in the digital environment should be reflected in the Code. The development of the draft Code is provided for in the National Human Rights Strategy of Uzbekistan mentioned above.
It is also advisable to develop programs for digital literacy of the population, in which it is necessary to include the implementation of international projects.
Thus, it is important to continue measures to improve international and national mechanisms for the protection of human rights, taking into account the realities of the digital transformation process.
REFERENCES
1. Карцхия АА. Цифровая трансформация и права человека// РУССКАЯ ПОЛИТОЛОГИЯ — RUSSIAN POLITICAL SCIENCE. 2018. № 4 (9). - С.35. (KARTSKHIA AA. DIGITAL TRANSFORMATION AND HUMAN RIGHTS // RUSSIAN POLITICAL SCIENCE. 2018. № 4 (9). - P.35.)
2. Выступление Верховного комиссара ООН по правам человека Мишель Бачелет в Женевском университете, 14 ноября 2018 г. Эл.ресурс [URL]: https://www.ohchr.org/RU/NewsEvents/Pages/DisplayNews.aspx?NewsID=23874&Lan gID=R (Speech by UN High Commissioner for Human Rights Michelle Bachelet at the University of Geneva, November 14, 2018)
3. Доклад ЮНИСЕФ «Дети в цифровом мире», 2017. - С.17. https://www.unicef.org/uzbekistan/sites/unicef.org.uzbekistan/files/2018-
11/sowc 2017 russian summary.pdf (UNICEF report "Children in the digital world", 2017. - P.17.)
4. Концептуальная записка Генерального секретаря по вопросам образования и COVID-19 (Concept Note by the Secretary-General on Education and COVID-19, available upon request from the UNESCO Press Office, Roni Amelan)
5. Этика и «цифра»: этические проблемы цифровых технологий. Аналитический доклад. Центр подготовки руководителей цифровой трансформации. 2020. Эл.ресурс [URL]: https://ethics.cdto.center/ (Ethics and "digital": ethical problems of digital technologies. Analytical report. Digital Transformation Leadership Training Center. 2020.)
6. Осуществление Резолюции 60/251 Генеральной Ассамблеи от 15 марта 2006 года, озаглавленной "Совет по Правам Человека". Доклад Специального докладчика по вопросу о поощрении и защите права на свободу мнений и их свободное выражение г-на Амбейи Лигабо. Эл.ресурс [URL]: http://hrlibrary.umn.edu/russian/hr-council/Rsprapporteur freexpression.html (Implementation of General Assembly Resolution 60/251 of 15 March 2006, entitled "Human Rights Council". Report of the Special Rapporteur on the promotion and protection of the right to liberty)
7. The text of the document is available at https://undocs.org/ru/A/RES/68/167
8. Electronic resource [URL]: https://digital.report/rekomendatsii-soveta-kasayushhiesya-rukovodstva-po-zashhite-neprikosnovennosti-chastnoy-zhizni-i-transgranichnoy-peredache-personalnyih-dannyih/
9. Electronic resource [URL]: https://www.coe.int/ru/web/conventions/full-list/-/conventions/treaty/108
10. Electronic resource [URL]: https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?docum entId=09000016806ebe7a
11. Electronic resource [URL]: https://rm.coe.int/guidelines-on-artificial-intelligence-and-data-protection/168091f9d8
12. Electronic resource [URL]: http://base.garant.ru/71734454/
13. Electronic resource [URL]: https://www.article19.org/wp-content/uploads/2018/05/Joint-Declaration.18-04-27-RU-final.pdf
14. Талапина Э.В. Эволюция прав человека в цифровую эпоху. // Труды Института государства и права РАН. 2019. Том 14. № 3. - С.122. (Talapina E.V. The evolution of human rights in the digital age. // Proceedings of the Institute of State and Law of the Russian Academy of Sciences. 2019.Vol. 14.№ 3. - P.122)
15. The text of the document is available at https://lex.uz/ru/docs/5031048
16. The text of the document is available at https://lex.uz/ru/docs/4820075
17. The text of the document is available at https://lex.uz/ru/docs/4545887#4548943
18. The text of the document is The text of the document is available at https://lex.uz/docs/4396428
19. The text of the document is available at https://lex.uz/docs/3333805
20. The text of the document is available at https://lex.uz/docs/3336171
21. The text of the document is available at https://lex.uz/ru/docs/4872357
22. Speech of the President of the Republic of Uzbekistan at the 75th session of the UN GA [URL]: http://uza.uz/ru/politics/vystuplenie-prezidenta-respubliki-uzbekistan-shavkata-mirziye-23-09-2020
23. Speech of the President of the Republic of Uzbekistan at the 72nd session of the UN GA [URL]: http://uza.uz/ru/politics/prezident-uzbekistana-shavkat-mirziyeev-vystupil-na-72-y-ses-20-09-2017
THE CONCEPT OF "FORCED LABOR": ANALYSIS OF NATIONAL LEGISLATION AND INTERNATIONAL LEGAL STANDARDS
Rasulov Jurabek Abdusamievich,
Lecturer of the International Law and Human rights Department of Tashkent State Law University E-mail: [email protected]
A R T I C L E I N F O
A B S T R A C T
Keywords: forced labor, International Labor Organization, Convention, Labor Code, ratification, national legislation, international labor standards.
This article analyzes the norms of international law and national legislation regarding to the legal nature of "forced labor". The article reveals the features of transformation into national legislation norm of the International Labor Organization on the issue of forced labor.
According to the International Labor Organization (ILO), today about 40 million people in the world suffer from various forms of slavery. People are involved in forced labor through threats, violence, deception and abuse of power [1].
Forced labor, modern forms of slavery, and human trafficking are issues of particular concern and concern to the world community.
The ILO General Conference, which adopted its first document on forced labor in 1930, the 29th Convention on Forced Labor or Forced Labor, called on member states to take the necessary measures to prevent the use of forced labor as soon as possible and to establish criminal liability for such crimes. Nevertheless, almost 90 years have passed and the
Convention has been ratified by almost all member states, but the practice of using forced labor is emerging in new forms and forms.
Naturally, the issues of legal regulation of the prohibition of forced labor are not limited to national legislation. In this regard, the importance and role of international treaties, norms of international custom, decisions of international courts, doctrines, etc., which are sources of international law, are particularly important.
Forced labor must be punished as a crime. Today, this situation is a universal fact. The vast majority of ILO member states have ratified both conventions on forced labor. Generally, national legislation, in particular criminal law and labor law, prohibits forced labor, as well as the practice of slavery and other similar practices, and imposes sanctions on cases of forced labor.
However, in his speech at the 93rd session of the ILO Director-General in 2005 on "The Global Alliance Against Forced Labor", he noted that in almost all countries, the two problems are common. First, with some exceptions, there is no clear definition of the concept of "forced labor," which in turn complicates the role of law enforcement in identifying and punishing offenders. Second, as a
result of the above situation, no matter which state we take, the cases of punishing those who use forced labor are very rare. Thus, such a vicious circle is taking root: the lack of clear legislation, the lack or total lack of resources to prosecute, the underestimation of the problem and the limited advocacy activities, and therefore the desire to adopt strict and clear legislation and so on [2].
So, how can we assess the compliance of our national legislation with international legal standards, the level of implementation of international law in our legal system?
As of September 1, 2019, the Republic of Uzbekistan has ratified 17 ILO conventions, including 8 main conventions, as well as the Convention for the Suppression of Child Labor and Forced Labor. Of these documents, the 29th Convention on Forced or Forced Labor, the 105th Convention on the Abolition of Forced Labor, and the Protocol to the 29th Convention on Forced Labor, ratified by Uzbekistan on 25 June 2019, directly regulate legal relations related to forced labor.
The report of T. Narbaeva, who took part in the 103rd session of the International Labor Conference as the head of the Uzbek delegation, shows how relevant the issue is for Uzbekistan. "Admittedly, ratification
of the conventions does not mean that the problem is solved," he said. Ratification of the Conventions is a 50 percent solution to the problem, and the rest is the implementation of international norms into national legislation, which is the first. Secondly, and most importantly, we need to change the practice of law enforcement and the thinking of the population, especially farmers and employers. "[3]
An analysis of the norms of national legislation and international legal instruments shows that there are significant differences in the interpretation and application of the concept of "forced labor".
Major international human rights instruments, such as the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights, contain provisions prohibiting coercion. For example, Article 8, paragraph 3, of the International Covenant on Civil and Political Rights states that "No one shall be compelled to work in compulsory or compulsory labor" and that the term "compulsory or compulsory labor" is not used.
However, the above-mentioned international legal documents do not provide a legal
definition of the concept of "forced labor". Such a definition was first used in the 1930 Convention on Forced Labor or Forced Labor, adopted by the ILO in 1930 (hereinafter -
Convention No. 29 is based on the definition given in Article 2 and subsequently adopted in other international legal instruments and national legislation. The Uzbek translation of the Convention uses the term "forced or forced labor" [4]. Thus, in accordance with Article 29, paragraph 1, of Convention 29, "for the purposes of this Convention, the term 'forced or compulsory labor' means any work or service that is required under the threat of any punishment from any person who does not voluntarily offer his services". This definition includes two important elements: work or service is performed under the threat of punishment and is done against the person's will. At this point, it should be noted that punishment is manifested not only in the form of any sanction, but also in the form of deprivation of human rights and privileges.
In addition, threats of punishment can manifest in numerous and varied forms. In particular, physical coercion or restriction of liberty, or even the threat of death to the victim or his or
her relatives, may be the most egregious manifestations of coercion. There are also cases of migrants working illegally in the country being forced to do certain work under the threat of extradition to the competent authorities of the government. Some manifestations of the threat of punishment may also be financial in nature. In particular, nonpayment of wages with the threat of dismissal in cases where the employee refuses to work overtime provided for in the employment contract or legislation. In this case, we can also see the second element of the concept of forced labor - the state of voluntary non-provision of their services.
In national legislation, the definition of "forced labor" was first defined in Article 7 of the Labor Code of the Republic of Uzbekistan. According to him, "forced labor, that is, coercion to work by threatening to impose any punishment (including as a means of maintaining labor discipline) is prohibited" [5]. This definition is in part consistent with the definition given in Convention 29. Also, Article 2, the third paragraph of the Law "On Employment" gives the same meaning as the definition of forced labor in the Labor Code, ie "Forced labor, ie coercion to work with the threat of any punishment is
prohibited. , except as provided by law "[6].
However, it should be noted that this legislation does not contain an important element of the definition in Convention 29 - the condition that an individual does not voluntarily offer his services. This shortcoming in national legislation can lead to ambiguity and misinterpretation in law enforcement practice, in particular when considering issues of liability established for cases of forced labor.
The definition in the Labor Code prohibits the use of forced labor as a means of maintaining labor discipline, which is a form of threat with punishment. However, Article 1 of the 105th Convention on the Elimination of Forced Labor (hereinafter referred to as the 105th Convention) states that "each member of the International Labor Organization that has ratified this Convention undertakes not to terminate or use any form of forced or compulsory labor. assumes:
a) political influence, or as a means of education or punishment, for the existence or expression of political views or ideological beliefs contrary to the existing political, social or economic system;
b) as a way to mobilize and use labor for economic development needs;
c) as a measure of labor discipline;
d) as a punishment for participation in a strike;
e) as a measure of discrimination on the grounds of race, social, national origin or religion "[7].
According to the Russian researcher VP Moshnyaga, the Convention is a measure of political repression, education, punishment for political and ideological views, mobilization of labor resources, strengthening labor discipline, punishment for participation in strikes from any form of forced or forced labor. prohibits the use of [8].
It should be noted that the above actions are, first of all, cases applied by the state. This was due to the increase in the mass use of forced labor for ideological, political and other purposes during the Second World War and its aftermath, which created the need for the adoption of Convention 105.
Only one of the forms of forced labor enshrined in the Labor Code, Convention 105, prohibiting coercion as a means of maintaining labor discipline can be explained by the fact that this situation mainly applies to the relationship between the employee and the employer. This is, of course, a relationship governed by labor law.
Article 29, paragraph 2, of Convention 29 also contains cases that are not considered to be "forced or compulsory labor", the list of which is almost identical to the cases provided for in Article 7, Part 2 of the Labor Code. However, a comparative analysis of these documents has shown that national legislation has significant shortcomings in this regard.
In particular, Article 29, paragraph 2, subparagraph (a) of the Convention establishes the following norm: "Any work or service required by the law on compulsory military service and applied to work of a genuine military nature shall not be considered compulsory labor."
The same norm is stated in Article 7 of the Labor Code: "Work that must be performed under the laws on military or alternative service is not considered forced labor."
In these two cases, the content of the "actual military matters" referred to in Convention 29 is related to national legislation, in particular the Law of the Republic of Uzbekistan "On General Military Obligation and Military Service" of 2002, which regulates the procedure for military service. other legislation does not provide a legal assessment. In view of the fact that the Convention has been ratified by the Republic of Uzbekistan and its
requirements are binding on the subjects of the national legal system, the legislation should define its content and strictly define the list of "real military activities" to be performed under military or alternative service law. will be required. Otherwise, it will be difficult to make a fair legal assessment of the violation of the rights and legitimate interests of citizens serving in the military in the practice of law enforcement.
However, Article 29, paragraph 2, subparagraphs (b) and (e) of Convention No. 29 also contain cases which are not provided for in national law and are not considered to be forced labor:
(B) any work or service which constitutes part of the ordinary civic duties of the citizens of a fully self-governing country;
e) minor community services, ie work performed by members of the team for the direct benefit of the team and therefore considered to be normal civil duties of team members, provided that only members of the team or their direct representatives have the right to consult on the appropriateness of such work. [10].
In these two cases, the main emphasis is on the fact that the performance of work by citizens of the country, which is a civic duty enshrined in law, is not considered
forced labor. Clearly, the involvement of citizens in such activities requires strict adherence to the established requirements.
In this regard, given the lack of the concept of "minor community services" in the national legislation, the involvement of citizens in such activities may lead to a violation of their labor rights, the legal assessment of this issue and the procedure for involving citizens in such activities It is necessary to strengthen it by making relevant amendments to the Law "On Employment".
Based on the analysis of national legislation and international legal standards on the legal nature of the concept of "forced labor", we can draw the following conclusions:
First, the definition of "forced labor" was originally given in the 1930 ILO Convention No. 29 on Forced Labor or Forced Labor, which has a much broader meaning. In our national legislation, this concept is enshrined in the Labor Code, and its definition does not provide for an important element - the fact that a person does not voluntarily offer his services. This leads to a one-sided approach in the legal assessment of cases of forced labor in law enforcement practice.
Second, ILO conventions provide a detailed list of forms of
forced labor, while national legislation strengthens the prohibition of only one form - forced labor as a measure of labor discipline.
Third, although the list of jobs and services that are not considered as forced labor is provided for in both international conventions and national legislation, national legislation in most places does not comply with the norms of international treaties ratified by our country.
Fourth, while acknowledging that international legal standards on forced labor have had a significant positive impact on the formation of national legislation, our legislators have not fully assessed the content and essence of international legal norms in the implementation of these standards in national legislation. Legal relations related to the concept of forced labor are limited to the scope of labor law.
REFERENCES:
1. http://www.unic.ru/event/2018-12-02/v-mire/40-mln-chelovek-zhertvy-razl ichnykh-form-sovremennogo-rabstva
2. http://www.unic.ru/event/2019-06-20/v-mire/tanzila-narbaeva-ratifitsirovat-konventsiyu-poldela-glavnoe-izmenit-otnoshen
3. In the original English text of the ILO conventions, this concept is adopted in the form of "forced labor" and "compulsory labour".
4. The text of the document is available at http://www.lex.uz/docs/2741079
5. The text of the document is available at https://lex.uz/docs/145261
6. The text of the document is available at http://www.lex.uz/docs/2686384
7. Мошняга В.П. Международный опыт социальной политики и социальной работы. Курс лекций. - М.: Изд-во Мос.гум.ун-та, 2006. - С.54 (Moshnyaga V.P. Mejdunarodnyy opyt sotsialnoy politiki i sotsialnoy rabotbi. Course lecture. - M .: Izd-vo Mos.gum.un-ta, 2006. - P.54)
8. The text of the document is available at http://www.lex.uz/docs/2741079
12.00.12 - Corruption issues
CORRUPTION - THE CORE OF MAIN PROBLEMS
Arslonov Doniyor Komil ugli,
Student of Tashkent State University of Law E-mail: Arslonovdoniyor. @gmail. com
A R T I C L E I N F O
A B S T R A C T
Keywords: public officials, legal norm, reform, bureaucracy, embezzlement
This article aims to explore several issues related to corruption and its impact on the development of Uzbekistan. It will be argued that widespread corruption in Uzbekistan is damaging the economy, reinforcing inequality, and undermining the effectiveness of state institutions.
According to Transparency International's Corruption
Perceptions Index, Uzbekistan is one of the most corrupt states in the world, occupying 153rd position out of 180 countries and territories [1]. It is in the lowest 10 percent of countries in terms of corruption in the World Bank's Worldwide Governance Indicators [2]. As these rankings suggest, corrupt practices and rent-seeking are encountered at every level of the state. Corruption is one of the major obstacles in
economic development, in creating a truly favorable business environment and investment climate. According to some estimates, the damage to the global economy from corruption is on average 2.6 trillion USD a year. There are several theories about how corruption emerges and spreads, and also the ways to tackle these issues.
If we talk about the things which instigate the corruption, the main reason of this is the low salary. One of the main arguments on the
link between low salaries and corruption is that for civil servants with low salaries, corruption becomes a coping strategy to compensate for economic hardship. These "needbased" arguments focus on the situation in which an underpaid official accepts bribes for basic necessities (Pilapitiya 2004), as opposed to greed-based corruption, which is more apparent in cases of well-paid officials in higher level positions (Wraith and Simpkins 1963). Against this background, it has been assumed that an increase in the salary of civil servants is likely to reduce their incentive to be corrupt. An analysis by Bond (2006) on corruption among court officials argues that not only does the practice of raising salaries increase the cost of corruption - and thus reduce the incentive for corruption -it also reduces the corruptibility of the labour pool. He argues that by paying court officials above the market-clearing rate, it increases the number of honest individuals who are attracted to the position by more than it increases the number of dishonest individuals.
There are multiple causes for this pattern of corrupt practices in Uzbekistan. Some scholars see the roots of corruption in particular social and cultural practices that are widespread within Uzbekistan.
Certain customs have become more widespread in the post-independence period as part of a broader revival of many pre-Soviet traditions [3]. For instance, according to the article of Urinboyev, mahalla-based social practices undermine the rule of law and good governance initiatives by promoting alternative version of how people behave. As he mentioned, in informal mahalla norms, the individual is expected to share his or her resources and political influence with the mahalla (family, kinship group, neighbours). Without any doubt, these norms shape the behavior of individuals when they engage in public administration or wield some political or economic resources. However, such cultural arguments have limited explanatory power in relation to highlevel, systemic corruption in the state. Instead, this report emphasizes the political and institutional drivers of corruption, focusing on the central role played by systemic corruption in both political and economic development within the country.
It is important to view corruption in the context of a wider system of political and economic power that has developed in Uzbekistan since independence. This system encompasses both the private and public sectors, with a
very blurred distinction between business and politics. The most important political groupings are not political parties, but patron-client systems or networks, which compete for control over business and resources. It is the interaction among these power networks—presided over by an autocratic president—that decides fundamental questions about who has access to political and economic resources, and who ultimately wields power. Within this system, corrupt practice is not an aberration from the legal norm, but effectively becomes the norm, albeit covered by a façade of legality. Since corrupt practices are so deeply embedded in the system of political power, genuine reform that tackles systemic corruption is particularly difficult to achieve.
While politics explains many of the patterns of high-level corruption in Uzbekistan, state institutions, regulatory frameworks and legislation are important in providing the conditions for corruption to thrive. Opportunities for corruption emerge when public officials have discretionary powers over financial flows and where there are few constraints against taking advantage of these powers for private gain. Constraints on corruption are formed by a combination of social, cultural, and legal constraints and the
oversight and monitoring activities ofindependent civil society organizations and media [4].
In certain circumstances some forms of corruption may offer temporary mechanisms of stability in both politics and in business, particularly in cases of stable, longstanding patronage [5]. Corruption may also provide a means for many individuals and businesses to cope with the deleterious effects of state bureaucracy and state interference in the economy.In most instances, however, the impact of systemic corruption is highly detrimental for both economic and political development, particularly over the long term.
Uzbekistan acceded to the UN Convention against Corruption in 2008. The government claims to have pursued an anticorruption campaign since 2010, but there have been no significant shifts in policy. But nowadays our president Shavkat Mirziyoyev is paying special attention to reduce corruption and shadow economy. Shavkat Mirziyoyev signed a decree "On measures to further improve the anti-corruption system in the Republic of Uzbekistan" on 27 May, 2020 [6]. The document is aimed at improving the effectiveness of the anticorruption system, creating the most favorable business climate and
promoting the country's positive image in the international arena.
Achieving significant progress against corruption in the country will require the reform of both the economy and the political system, the development of an independent judiciary and rule of law, much greater freedom for the media, and an study tours, to emphasize more substantive engagement.
Transparency and accountability State initiatives alone are unable to tackle the problem of corruption. Every country needs a more active media and civil society that can challenge corrupt practices, and a
freer flow of information. Priority Reforms in Tackling Corruption includes:
• Provide reliable data about public finances and state expenditure, and the functioning and oversight of off-budget funds;
• Ensure transparent court proceedings and accessible documentation and reporting about court cases in cases of corruption;
• End the prosecution and harassment of journalists and civil society activists reporting on corrupt practices in state bodies.
REFERENCES:
1. http://www.transparency.Org/cpi2019
2. http://info.worldbank.org/governance/wgi/index.aspxhome
3. R. Urinboyev and M. Svensson, "Living law, legal pluralism, and corruption in post-Soviet Uzbekistan.
4. This approach is taken from Alina Mungiu-pippidi et al. Contextual Choices in Fighting Corruption: Lesson Learned
5. Lawrence P. Markowitz, State Erosion: Unlootable Resources and Unruly Elites in Central Asia (Cornell University Press, 2013); C. H. Stefes, 'Governance, the State and Systemic Corruption: Armenia and Georgia in Comparison', Caucasian Review of International Affairs, 2(2) (2008), pp. 7383; Yuhua Wang, 'Institutions and Bribery in an Authoritarian State', Studies in Comparative International Development, 49(2) (2014), pp. 217-241.
6. http://www.pv.uz
