OSCE/ODIHR database of legal reviews and legislation

The Joint Opinion starts by pointing out that several principles set out in the Draft Code are positive (e.g. the right to free use of information, prohibition of censorship and media monopolization) but that a number of provisions raise serious concerns as they do not comply with internationally recognized freedom of expression standards. The Joint Opinion explains that the regulatory system contemplated by the Draft Code fails to take into account the differences between the different types of media, and recommends instead adopting a graduated and differentiated approach towards the legal obligations imposed on media. The Joint Opinion then expresses serious concerns about certain content restrictions which are not compliant with freedom of expression standards. It also notes that, under the Draft Code, media regulation is concentrated under government bodies, and recommends instead the establishment of an independent media regulatory body. The Joint Opinion also warns that the vague and overbroad grounds for suspending or terminating the activity of media is likely to produce a chilling effect on media freedom, and recommends to narrowly define these grounds and ensure that such sanction are treated as a last resort

The Draft Law with proposed amendments to the Criminal Code, Criminal Procedure Code and Criminal Enforcement Code intends to regulate corporate criminal liability in Uzbekistan. The opinion welcomes efforts that have been undertaken to introduce corporate criminal liability in the Criminal Code. The opinion observes that from the manner in which the proposed amendments are drafted, it is unclear whether all the fair trial guarantees and protections offered to individuals are applicable to legal entities. Further, the personal scope for attributing criminal liability to a legal person is not very clearly regulated which is not in line with the principle of legal certainty and foreseeability of criminal legislation.

The opinion also notes that the scope of criminal offences for which the liability of legal persons may be incurred, which is limited to corruption-related offences should be broadened and that a number of adjustments should be considered to enhance the effectiveness of the legal framework, including with respect to interim measures, contemplated sanctions and to ensure the extra-territorial application to criminal offences committed abroad.

The independence of the judiciary is a fundamental principle and an essential element of any democratic state based on the rule of law and an integral part of the fundamental democratic principle of the separation of powers. Ensuring the independence and impartiality of a court or tribunal is as much a matter of principle as it is a matter of management. 

It is welcome that Uzbekistan has taken steps to formulate and streamline principles intended to guide judicial bodies and their independent functioning in accordance with their respective mandates. The Concept Note and the Draft of the “Universal Principles of the Activity of the Judicial Councils” distinguishes between general and special principles for this purpose. At the same time the manner in which these principles are drafted, the structure and terminology used raise serious concerns as to the compatibility of these Draft Principles with existing standards and, ultimately, impair their practicality.

The principles should be neutral, objective and above all be formulated and understood from the perspective of existing international principles pertaining to judicial or similar bodies.

Summary: At the outset, the establishment of an Anti-Corruption Agency is a commendable step and could have a positive effect in the fight against corruption in Uzbekistan. However, anti-corruption agencies require a stable legislative framework and it is therefore recommended to establish the Agency through a special law or due a constitutional provision. The recommendations established in these Urgent Comments are valid for any legal act establishing the Agency. Should establishment by Decree be maintained, the recommendations also remain valid. Functional autonomy and effectiveness of the Agency should be ensured, it lacks necessary dualization and clarity with respect to powers and procedures, and in overall seems not meet many standards of the UN Convention against Corruption and the Jakarta Statement on Principles for Anti-Corruption Agencies (Jakarta Principles). The Agency seems to lack institutional and financial autonomy, as well as a robust mandate, clearly defined powers internal and external accountability.

Summary: The Draft Decree commendably aims to completely overhaul the institution of the advocacy, to improve the quality and of the number of advocates in the country which have previously been criticized due to lack of independence of the Chamber of Advocates and the low number of lawyers compared to the population of Uzbekistan.  To achieve this, the Draft Decree determines concrete changes. In view of coming legislation and to avoid substituting primary legislation, the Draft Decree should limit itself to outlining, in broad strokes, what needs to be changed, indicating which bodies shall be tasked with drafting further strategies and developing ways forward.

Summary: ODIHR concludes that the Law raises numerous serious concerns with regard to its compatibility with international human rights standards and has the potential to unduly restrict the full range of human rights, particularly the rights to life, liberty and security of person, privacy, freedom of expression, freedom of association and freedom of peaceful assembly, freedom of thought, conscience and religion or belief and equality. An overarching concern raised in the Opinion pertains to the legal definitions of “terrorism” and related terms in the Law, which require amendment in order to clarify their scope and comply with the principles of legal certainty and foreseeability. Also, the counter-terrorism powers conferred by the Law to public authorities are far-reaching, yet there is currently no clear legislative framework to regulate and limit them, clearly specifying the circumstances and conditions when such powers may be used, to what end, and subject to what procedures and safeguards.