One of the basic human rights is the right to own, use and dispose of a property. Property is untouchable and sacred. This postulate, which previously caused a lot of controversies, is now universally recognized in the heyday of product-money relations.
It should be noted that the right of ownership is quite vulnerable, both on the part of participants in civil law relations, and also on the part of public authorities and administration.
A crucial role in ensuring adequate and effective protection of property rights is exercised by courts. The entire judicial system shall ensure the correct enforcement of legal acts governing property relations. And the task of any state, including the Republic of Uzbekistan, is to create an effective and modern judicial system, which is able to solve problems of ensuring the rights and freedoms of citizens.
Therefore, reforming the judicial system is one of the most important directions of state policy. This issue has always been and continues to receive special attention. Thus, the Action Strategy for five priority areas of development of the Republic of Uzbekistan in 2017-2021, which is one of the main directions of further development, provides for the modernization of the judicial system.
As, the President of the Republic of Uzbekistan, Shavkat Mirziyoyev, noted in his festive congratulations on Constitution Day: Deep reforms are being carried out in accordance with an important constitutional provision - ensuring human rights and interests in all spheres, especially in judicial and legal.
Indeed, an independent and effective judiciary is a guarantee for ensuring and protecting human rights. This is the most important condition for effective compliance with the law.
On December 7, 2020, the President signed the Decree On Measures to ensure the true independence of judges and improve the efficiency of Anti-corruption actions in the judicial system. The document defined main directions of state policy in these areas.
In the context of the implementation of state`s policy of improving the activities of courts in the field of protecting rights and interests of private and legal persons, special importance is attached to judicial protection of property rights.
Art. 19 of the Constitution of the Republic of Uzbekistan provides: the rights and freedoms of citizens enshrined in the Constitution are inviolable, and no one can arbitrarily deprive of it without a court order. Additionally, Art. 10 of the Civil Code of the Republic of Uzbekistan defines: Protection of civil rights is carried out in accordance with the jurisdiction of cases established by procedural legislation or an agreement, a court, an economic court or an arbitration court.
This provision applies to the protection of ownership as well. The main and most effective methods of protection are those, which provide for judicial protection in response to a claim submitted to courts on the matter of violation of ownership rights.
According to Article 54 of the Constitution and Article 164 of the Civil Code, the right of ownership is the right of a person to own, use and dispose of the property belonging to him at his own discretion and in his own interests, and also demand the elimination of any violations of his property rights.
In accordance with Article 182 of the Civil Code, the grounds for acquiring ownership rights are: labor activity; entrepreneurial and other economic activities related to the use of property, including the creation, increment, acquisition of property through transactions; privatization of state property; inheritance; acquisitive prescription; other grounds, not contradicting to the legislation.
In the second paragraph of the first part of Article 11 of the Civil Code, it is provided that the protection of civil rights is carried out by recognition of that right. According to paragraph 6 of the first part of Article 26 of the EPC, economic courts resolve disputes over the recognition of property rights.
The resulting law enforcement model puts the law in actual and legal dependence on the decisions made by the court: the rule of law is valid only if the court makes the appropriate decision. This is followed by the law being implemented through the adoption of a court decision, which launches the enforcement mechanism.
This situation is partly the result of the absolutization of a court decision as the main instrument in the law enforcement mechanism, when a court act is considered as the main legal fact of substantive law, on the basis of which subjective rights and obligations are terminated. The priority is given to a decision of courts, which essentially determine the life of the rule of law and its implementation; and, interestingly, the force of the law is placed under the condition of the validity of the court decision.
In addition, the role of a court decision in the mechanism for the implementation of subjective civil law for protection is worth pointing. If we consider the action of the mechanism for the protection of rights completed only after the real and actual elimination of violations of the law, than, the restoration of a violated subjective civil right by positive decision of a court is not the indicator of full elimination. The indicator is proper execution of that court decision.
The Law On Protection of Private Property and Guarantees of Owners' Rights, in article 2 provides: The owner may be deprived of his property only in cases and in the manner prescribed by the law.
Article 17 adds: Property in private ownership is not subject to nationalization, confiscation and requisition, except in cases stipulated by law. This provision is followed by Art. 23 of the Law On guarantees of freedom of entrepreneurial activity:
The seizure of property, the termination of other property rights of a business entity, as well as their limitation are not allowed, with the exception of cases provided by law.
However, before the adoption of this act, there were cases when a subject deprived of the right of ownership had to refer to a court after a state body (khokimiyat, etc.) made a decision to seize property in illegal matter outside the competences given to it by the Constitution and the above mentioned laws. This was a consequence of the fact that indication in a number of laws and regulations that decisions on limiting or deprivation of ownership can be adopted by state bodies on the basis of legislation or acts of legislation, in fact, transferred exclusive competence to the executive branch of government.
In accordance with the order of the President of the Republic of Uzbekistan from August 3, 2019 No. R-5491, the seizure of land within the framework of the effective implementation of state programs and investment projects is allowed only in compliance with the established rules aimed at ensuring and protecting the rights of persons whose land is being seized. These documents contain a list of grounds and the procedure for the seizure of a land for particular purposes.
Losses caused to inpiduals and legal entities as a result of the issuance of an illegal administrative act by a state body (official) are subject to compensation by the state, in the first place, at the expense of extra-budgetary funds of the relevant authorities with subsequent recovery from the guilty person in a recourse manner.
In our opinion, the above procedure will lead to the Republic of Uzbekistan gaining higher position in the global index of ownership right.
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