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Isolation of justice

Uzbekistan has found itself in an unprecedented situation. The government has to limit some of the human rights in people’s interest. This is because the right to life conflicts with other fundamental rights. These are freedom of assembly and freedom of movement.

We can justify such measures with one of the Roman Law postulates. It says one’s rights end where the rights of another begin. Of course, it is necessary to implement this within the framework of the law and the norms of international law recognized and ratified by the country, by legal mechanisms that allow such restriction to be legally enforced.  However, this issue is not the subject of this article.

For example, the right to a fair trial and defense  is an inalienable right of everyone and a principle of international law that is enshrined in one of the fundamental acts – the International Covenant on Civil and Political Rights from 1966. Article 2 of of the Covenant specifically states that each member state to the Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

(c) To ensure that the competent authorities shall enforce such remedies when granted.

The fundamental law of our country also guarantees legal protection. Thus, Article 22 of the Constitution of the Republic of Uzbekistan guarantees legal protection to its citizens, Article 26 establishes the presumption of innocence and guarantees all possibilities for the protection of a person, Article 116 establishes the right to defense  for the accused, and professional legal assistance is guaranteed at any stage of the investigation and proceedings.

However, since the introduction of restrictive measures on movement matters of the administration of justice arose a big question  without the possibility of the country’s attorneys participating in these processes. In particular, according to the Decision of the Republican Special Commission (based on media reports and various information channels) from March 29, 2020 the movement of personal vehicles was limited from March 30.

The document, along with the rest, made some exceptions for certain category of car owners who could obtain a special permit to move around the city.  However, the attorneys were not included in that category, which derived the opportunity to provide qualified legal assistance to suspects/accused, principals and legal entities, as well as to participate in trials and other procedural actions.

In addition, in accordance with amendments and additions to the aforementioned list dated April 8, employees of the State Security Service, the Ministry of Internal Affairs, and the Department for Combating Currency Economic Crimes under the General’s Prosecutor Office were allowed to use personal and official  just by  providing their official badge. 

Also, the right to use an state car  was granted to the National Guard, the State Customs Committee, court bodies and prosecutors.

All those state bodies involved in the administration of justice got the opportunity to fulfill their public tasks and perform legally significant actions, while the country’s lawyers and attorneys were completely deprived of this opportunity.

The Ministry of Justice sent a letter in response to a written request from the Chamber of Lawyers to include lawyers in the above list, which indicated that lawyers, if necessary, will be provided with transport (by bodies of justice, courts and investigations), but this causes doubts regarding the independence of attorneys and the adversarial process.

For example, in the Russian Federation, the Ministry of Justice, referring to the Constitution, sent a letter to the heads of the executive branch to allow free movement of attorneys in order to perform their obligations of providing of legal assistance. Also, on the channel maintained by the Ministry of Justice of Republic of Uzbekistan (“Legal Information”), it was reported that stickers were provided to the heads of the Chamber of Lawyers and their territorial divisions, but it is not clear how providing stickers to these individuals will help the attorneys themselves in resolving the cases of their clients.

We can observe how statistics are kept every day and figures are given that reflect the number of cases and individuals who have violated the quarantine and self-isolation regime. Some of them are called to responsibility, and some are punished up to administrative arrest. However, the legitimacy of all these actions without the participation of attorneys is doubtful (and if the legal assistance was provided by law enforcement agencies, how much their “assistance” was objective and can it be considered qualified and in the interests of the defendant with the above).

the suspects/defendants of their constitutional guaranteed right to receive professional legal assistance and it is not only about those who were held accountable in view of the current situation, but also those who are in prison whose investigation is still “up” (detention and elsewhere insulation), where attorneys do not have access. 

The restriction of the right of freedom to movement came into conflict with the constitutional right to a fair trial, which should be allowed at any cost if we are or at least strive to build a healthy, democratic, legal society. The emerging epidemiological situation should not be a reason to reject the course taken by the Strategy actions for the further development of the Republic of Uzbekistan 2017-2021, in which one of the main areas is ensuring the rule of law and further reforming the judicial system. We should emphasize that this area also includes a full implementation of the adversarial principle in the trial, the improvement of the provision of legal aid and legal services.

The rule of law is particularly important at such difficult times as today, which was also emphasized by Tedros Adhanom Gebraysus, Director General of the World Health Organization during the St. Petersburg International Legal Forum held online on April 10, 2020.


COVID-19: the price of fragility

The problem the world is facing today (the COVID-19 pandemic) was predicted and repeatedly raised by N. Taleb – the author of the world-famous bestsellers Black Swan: under the sign of unpredictability and Antifragility.

13 years ago, in his book Black Swan, the thinker wrote about the threat of new viruses in the context of modern globalization.

Indeed, the COVID-19 pandemic can hardly be called a black swan, which N. Taleb himself admitted in an interview with Bloomberg. It was not possible to localize the threat and prevent its spread outside China. As expected, with free movement of people, the virus spread quickly and reached almost all countries of the world, notably shaking the world economy.Financial markets reacted to the pandemic. Governments began to cut rates (the US Federal Reserve lowered the refinancing rate twice, first to 0.5%, and then to 0.25%) in order to reduce the negative effect on economic activity and allocate government subsidies to entrepreneurs who started to suffer losses, and citizens who found themselves in a difficult situation.

The scale of the pandemic has also affected oil prices, rolling them back to 2002 prices. Large companies have been forced to temporarily suspend projects and send workers either on paid leave or to establish a remote working regime. In some countries, employees have been even asked to apply for unpaid leave.

States have introduced the state of emergency, restricting the movement of people or prohibiting it all together. The states recognized the coronavirus pandemic as a force majeure event by issuing appropriate certificates for the parties to the agreement, the implementation of which has become impossible.

After simple calculations, you can detect the geometric progression of the growth of infected. So, the number of infected people begins to increase from the second week, and from the fourth, as a rule, the scale of infection grows several dozen times (the conclusion is based on the study of statistical data from China, USA, Italy, Spain, France). It does not seem entirely appropriate to determine the peak or the moment when the virus goes into decline. China’s experience suggests that the decline in the number of infected people is directly correlated with measures taken by governments.

The coronavirus pandemic may not have become a black Swan, the author himself called it a White Swan, but it surely has taught us all good lessons, especially the governments. The world has already seen pandemics, seen their scale and consequences (for example, the Spanish flu pandemic, which killed 5% of the World’s population, and the Hong Kong flu, which killed 1 million people), but countries have not taken appropriate measures to prevent the disease. Neither the citizens themselves, nor the economies, nor the private sector, and most importantly, the health system, particularly in developing countries, were actually prepared for a disaster of this magnitude. Here is what Taleb said on that:

Not seeing an approaching tsunami or economic crisis is excusable; creating a fragile house or a fragile economic system is criminal.”

When the virus went beyond China, not all countries assessed the seriousness of the threat and took appropriate measures. Although it is hard to say that someone was ahead of the curve, but it can be concluded that China itself has grown stronger now. Unlike other countries, it passed the strength test by strengthening its health care system and making appropriate conclusions that we will still see through the laws and regulations they have adopted.

Indeed, having survived the epidemic, China has shown anti-fragility. The absence of coordinated, well-thought-out actions in many countries, i.e. security protocols (action plan in a special situation) played a role in case of many countries. This may seem ridiculous, but in the US, the Pentagon has developed a protocol even in the event of a zombie attack (CONOP-8888). But, despite the existence of such protocols, today the United States has surpassed by the number of infected, and yet the implementation of preventive measures is not observed.

The consequences of a pandemic will certainly affect the markets and businesses. Many projects may see cuts in budget, and the service market, including law firms and consulting companies, will have to review their pricing policy. Today, large law firms are cutting salaries for associates, staff, and some completely cancelling any payments to partners.

We should expect further growth of IT projects, expansion of delivery services, the introduction of online services to places where this did not exist before and, of course, the pharmaceutical sector will continue to grow. In addition, we can expect an increased interest in scientific projects, especially in biological ones. There is no denying that we should expect an increase in the production of medical equipment, especially taking into account the acute shortage of life-support devices around the world. The financial sector will not be left out either. We can imagine the consequences of the crisis, such as overdue payments on credit obligations, even after the end of the pandemic. Financial and credit organizations, including banks, will have to review their policies and become more flexible in the current conditions.

The labor market is particularly important. In connection with all the events, it is possible that the unemployment rate in some countries will increase in the meantime, as some sectors will decide on automation of their business processes, which, will cause even greater demand for IT specialists. Pharmacists and biologists will be affected similarly.

However, on a global scale it will be important what conclusions and lessons the governments draw and whether they can become anti-fragile, i.e. stronger after the crisis? Will it become post-traumatic disorder or post-traumatic growth? Questions that only time can answer.



Radiation safety and lack of mechanisms of protection in Uzbekistan

Radiation safety – citizens safety and environmental protection from harmful effects of ionizing radiation.

Waste – residue from raw materials, materials, semi-finished products, and other byproducts that were formed during manufacturing or consumption, as well as goods (products) that have lost their consumer properties.

A tailings storage facility or tailing ponds is a complex of special structures and equipment designed for storage or burial of radioactive, toxic and other waste from mineral processing (such waste is called tailings).

Relevance. Central Asia is one of the most vulnerable regions for its susceptibility to environmental, technological and radiation threats. Currently there are 48 tailing ponds that are not maintained in proper condition and carry the danger of radioactive contamination. Moreover, it is worth noting that these radioactive waste sites are located around densely populated and bordering areas which increases the risk of transboundary environmental disaster through polluted air, soil and water resources. The region is prone to earthquakes, floods and landslides with most of the rivers running across borders. An example of such a disaster could be a landslide on the sites of radioactive waste, which may dislodge the toxic waste into the rivers and cause a transboundary disaster. Nuclear waste is hazardous not only for ecology, flora and fauna, but also local population living nearby with those disposal sites. This is combated nowadays with radiation safety regulations, proper access to safety information, and guarantees for protection of people’s rights. Despite this, it remains important to increase people’s legal literacy and educate them on management of disposal sites, as well as raise awareness of the hazards of having radioactive waste disposal sites and thereby engaging people in the waste management processes

Problems. State bodies develop and implement programs to ensure radiation safety. However, the effectiveness of these programs in practice is unclear. For example, in the Chorkesar Mahalla of the Papskiy district, Namangan region, some parts of the uranium disposal site are not fenced. According to studies from December 18, 2018, local residents complained that shepherds wander into the burial grounds for grazing due to the lack of fencing, which could potentially harm public health and property. Since the locality is far from the district center (30 km), residents themselves provide first aid in case of emergencies, road accidents, although they do not have any special training, the necessary funding or equipment. There is only one Ambulance for 15 thousand residents. The hospital and polyclinic do not meet all the needs of the population. The main part of the population consists of elderly people and women who find it difficult to pass medical examinations in a district or regional center due to the remoteness.

The practical realities obstruct the protection of rights guaranteed by law, such as the guarantee for medical examinations. In addition, the measures that should have been taken after detecting harmful effects following medical examinations have not been established. And it is not clear who carries the treatment expenses.

Legal and Regulatory acts. Currently Uzbekistan has large number of legal acts that directly or indirectly regulate radiation safety. Those are Law on Radiation Safety, Law on Wastes, the Decree of the Cabinet of Ministers on Social Protection Measures of Citizens Living in Territories with a Possibility of Exceeding the Established Basic Limits of Radiation Doses,  Order of the head of the State Inspection Service for Supervising Geological Study of Subsoil, Safety Operation in Industry, Mining and Municipal-Domestic Sectors on Approval of the Regulation on the Management and Long-term Storage of Radioactive Waste in the Republic of Uzbekistan, Law on Nature Protection, Law about Environmental Control, the Regulation of Cabinet of Ministers No.250 On the Procedure for Maintaining the State Cadaster of Landfills and Waste Processing Facilities, Regulation On the Procedure for Developing and Approving Draft Environmental Standards No. 14, Regulation On the Procedure for State Accounting and Control in the Sphere of Waste Management No. 295, Law On the Protection of the Population and Territories from Emergencies of Natural and Technogenic Character.

The problem of the implementation of legal acts, the lack of a mechanism.

As noted earlier, Uzbekistan has developed a large number of laws regulating radiation safety. The legislation provides for measures to ensure radiation safety, for example, Article 12 of the Law of On Radiation Safety states how radiation safety is ensured. However, worth noting that there is no mechanism for implementing this article, i.e. how exactly radiation safety measures are implemented. Moreover, this is not the only law that has problems regarding its implementation mechanism.

Recommendations. The legislator needs to develop a clear mechanism for the implementation of certain provisions established by laws regulating radiation safety. Develop, based on international experience, a Law On Radioactive Waste Management that would define all the necessary mechanisms, powers of state bodies and a unified system for managing radioactive waste, taking into account the legitimate rights and interests of the population.