Tuesday, September 27, 2022

Ensuring the independence of the legal profession in the context of constitutional reform in Uzbekistan

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By Rasulev Abdulaziz Karimovich and Khujayev Shokhjakhon Akmaljon Ugli

In a state governed by the rule of law, ensuring a balance of power between the state and society is a prerequisite for the establishment of a democratic regime. This requires the strength of civil society institutions, which are the basis of the rule of law. Civil society, in fact, symbolizes conscious compliance with the requirements of the law and has the advantage of influence others in order to ensure the rule of law.

This lever is public control, successfully tested in the history of humankind and functioning in developed countries, or rather, local authorities, mass media and non-profit organizations. Therefore, the state is interested in developing and strengthening this system. In fact, this is the basis of civil society. In this regard, the reform of the Institute of Advocacy as a civil society institution, which by definition is a non-governmental and non-profit organization, is critical for improving the effectiveness of our country’s judicial and legal reforms.

Today, for any state, the advocacy is not only an institution for the protection of human rights and organizations, but also an important participant in the formation of civil society. In many ways, advocacy contributes to raising the level of legal awareness and legal culture of the population. Therefore, the effectiveness of legal regulation of advocates’ activities directly affects the implementation of constitutional rights and freedoms of the individual. In this regard, it is the constitutional guarantee of the independence of the advocacy that is most important.

In the current article 116 of the Constitution of the Republic of Uzbekistan, constitutional guarantees were enshrined to ensure the right of the accused to receive protection, qualified legal assistance at any stage of the proceedings in the investigation and court bodies, as well as the role of the advocacy as an institution providing legal assistance to citizens, enterprises, institutions and organizations. Organizational foundations have been created in the country and a mechanism has been formed to promote the functioning of the legal defense system, especially the creation of an appropriate national infrastructure for advocacy.

Over the years of independence, 3 Laws of the Republic of Uzbekistan, more than 10 decisions of the President of the Republic of Uzbekistan and the Cabinet of Ministers of the Republic of Uzbekistan, and  several departmental regulatory legal acts have been adopted in order to reform the institute of advocacy, further strengthen the status and provide guarantees to advocates, and increase the reputation and prestige of the advocate profession. In turn, these regulatory documents have formed a kind of practice, prompting advocates to carry out their activities on a professional basis.

However, there are some problems with the functioning of the legal profession. Unfortunately, the number of advocates is insufficient. Today, there are more than 4 thousand advocates in Uzbekistan; there is an average of one specialist per 8.5 thousand residents of the country. For comparison, in European countries, there are 162 advocates for every 100,000 people.

Furthermore, 43 percent of advocates in Uzbekistan work in Tashkent (the state capital), and not a single law firm is registered in any of the country’s 20 districts. These figures clearly show the severity of the problem.

As part of the constitutional reform in Uzbekistan, it is proposed to consolidate the principles of independence and self-government, non-interference in the professional activity of an advocate. These principles are important in the context of ongoing judicial and legal reforms. Thus, in the Strategy of Actions for the Further Development of the Republic of Uzbekistan in 2022-2026 as the most important goal (Goal 19) within the framework of the direction of ensuring the rule of law and strengthening justice, “a cardinal increase in the capacity of the institute of advocacy in the protection of human rights, freedoms and legitimate interests” is indicated.

It should be noted that the independence and self-government of  advocacy is an important principle of international standards in the field of human rights and advocacy. The fundamental international human rights instrument is the Universal Declaration of Human Rights. His famous article 1 says: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood ”. For the effective implementation of these, qualified legal assistance is also necessary, which is provided by the legal profession. Therefore, international legal standards in the field of advocacy closely complement international standards in the field of human rights.

One of the most striking examples of international standards are the Basic Principles on the Role of Lawyers. These principles show the importance of access to advocates and legal services. In particular, the importance of accessibility of the legal profession is indicated, which is ensured by the following measures:

– a guarantee of the right to appeal to any advocate for help to protect and defend his rights and protect him at all stages of criminal proceedings;

– ensuring the provision of sufficient financial and other means to provide legal services to socially vulnerable segments of the population;

– informing people about their rights and obligations under the law and about the important role of advocates in protecting their fundamental freedoms.

A special role should be assigned to the legal community. It is the legal community that should independently solve the issues of professional activity of advocates. One of the striking examples is the experience of the European Union. Thus, in Europe, there is a Code of Conduct for Advocates in the European Union, which applies to cross-border activities within the EU and was adopted in Strasbourg in 1988 by the Council of Advocates and Law Societies of Europe. Therefore, it is mandatory for all advocates from EU countries.

Recommendation No. R. (2000) 21 of the Committee of Ministers of the Council of Europe on the freedom of exercise the profession of lawyer suggests that all necessary measures should be taken to ensure that the freedom to practice the profession of a advocate is respected, protected and promoted without discrimination and unlawful interference by authorities or the public, especially in the light of the relevant provisions of the European Convention on Human Rights.

In this document, the practice of advocacy is considered in close connection with the cultural, social, political and historical context of each society. In any democratic society, advocates are called upon to play a crucial role in the administration of justice,  the prevention and resolution of disputes, as well as in the protection of human rights and fundamental freedoms. Decisions regarding permission to practice law or become a member of this professional group should be made by an independent body. Control over such decisions — whether they are taken by an independent body or not — should be carried out by an independent, impartial judicial authority.

Advocacy is the most important legal institution of any state, standing for the protection of the fundamental rights of citizens and their associations. The confidence of every citizen or entrepreneur in their well-being and success largely depends on how strong, organized, and legally protected it is. Therefore, constitutional guarantees of independence and self-government are important both for the advocates themselves and for society.

About the authors:

Rasulev Abdulaziz Karimovich is the Deputy Director of the Research Institute for Legal Policy under the Ministry of Justice of the Republic of Uzbekistan, Doctor of Sciences in Law, Professor.

Khujayev Shokhjakhon Akmaljon Ugli is the Head of the Department of Intellectual Property Law at Tashkent State University of Law, PhD

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