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.

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