Constitutional Control in Uzbekistan:
Current State and Development Perspective【Translated Article】

Constitutional Control in Uzbekistan:
Current State and Development Perspective *GAFUROV Askar **Abstract
This article looks into potential ways to improve constitutional control and increase
its effectiveness. The research subject focuses on the legislative foundations ofconstitutional justice in Uzbekistan, particularly on the essence of constitutional control
and legal mechanisms of its implementation. The article indicates the disadvantages andproblems of the implementation of constitutional control in Uzbekistan. Author notes thatthe constitutional control of Uzbekistan is rooted in the European model of constitutional
justice, but it needs further improvement of its mechanism. In order to analyze the current
condition, the author briefly shows the formation history of constitutional control.
Analysis of the current state results in the following observations; First, Constitutional
Court needs to improve its legal framework and the practice of exercising constitutional
control. Second, the absence of the constitutional complaint makes constitutional review
ineffective.
This paper also examines the possibility of introducing a constitutional complaint thatwould grant citizens and legal entities the right to apply to the Constitutional Court. The
author claims that careful consideration of foreign experience is of particular importance
while introducing a constitutional complaint.
The article describes the specifics of constitutional complaint’s application. It
proposes an individual complaint’s admissibility after a lower-level court has issued ajudgement in a case dealing with allegedly violated citizens’ constitutional rights. The
author recommends a preliminary examination of citizens and legal entities complaints
and a specific time limit for lodging complaint. It is proposed to abandon the preliminary*

This article is an English translation. It was originally published in Russian in https://inscience.uz/index.php/socinov/article/view/152**

Ph.D. (in Law), Deputy Chairman of the Constitutional Court of the Republic of Uzbekistan, Tashkent, Uzbekistan. All inquiries

must be forwarded to askargafurov@mail.ru

109

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

questioning practice by judges of the Constitutional Court and authorize the Court’s
structural divisions to analyze complaints and verify their admissibility. Mentioned
novelties aim to improve constitutional control, increase its effectiveness in ensuring
constitutional legality and protecting citizens’ fundamental rights and freedoms.
Thus, the proposed adoption of the new constitutional law on Constitutional Court of
the Republic of Uzbekistan in the new edition will strengthen constitutional control,
constitutional legality, improve constitutional proceedings, and, ultimately, effectively
protect citizens’ rights and freedoms.
Conclusion sheds light on reasons for constitutional control’s ineffectiveness andoffers proposals for its improvement in the form of a constitutional complaint, and its
admissibility criteria.

Contents
I.

Introduction

II.

The Current State of Constitutional Control

III. Prospects for the Development of Constitutional Review
IV. Conclusion

I.

Introduction
Uzbekistan's constitutional control has a task to ensure the Constitution's supremacy and laws,

ensure constitutional legality. In a broad sense, the constitutional review can be exercised by the
President, parliament, government, courts of general jurisdiction, the ombudsman, justice andprosecution authorities, and other competent law enforcement agencies. The constitutional control
analyzed in this article refers to a special judicial body of the Constitutional Court of the Republicof Uzbekistan (hereinafter, the Court).
Scholars pay considerable attention to the evolution of constitutional control in many countries,
including in the CIS. Notably, the formation and development of constitutional control in
Uzbekistan follows general CIS tendencies within statehood formation in the post-Soviet space.
Research on the development of constitutional control in Uzbekistan has not yet received
sufficient academic attention. The state and development of constitutional control in Uzbekistan isaddressed in scientific articles of academician A.Kh.Saidov, 1

1

B.Sh. Mirbabaev, 2O.Z.

Саидов А.Х. «Контроль за конституционностью нормативно-правовых актов законодательной и исполнительной власти

– важный механизм защиты прав и свобод человека».//Ҳокимият тармоқларини тармоқларини бўлиниш принпипина

110

Constitutional Control in Uzbekistan:
Current State and Development Perspective

Mukhamedzhanov. 3 Apart from the mentioned authors, the constitutional review has not become
the subject of serious scientific analysis. Some authors have covered the issue 4 in the framework of
their research on constitutional courts' practice in post-Soviet countries.
Russian scientist O.V. Brezhnev, 5 and assistant professor of Nagoya University of Japan A.
Ismatov 6 devoted their articles directly to constitutional control’s analysis.
The study of constitutional control offers a closer look at its essence and provides fresh
perspectives to assess constitutional justice implementation and identify legal gaps objectively.
Modern constitutional control’s developmental trends necessitate taking a closer look at theissue to expand its democratic settings (i.e. constitutional complaint) in protecting human rights,
and increase the role of Court in ensuring constitutional legality.
Currently, the parliament considers adopting a new Constitutional Law "On the Constitutional
Court of the Republic of Uzbekistan" and introducing a constitutional complaint. In this regard, it isnecessary to research the current state of constitutional control, identify future directions for its
development, in the context of the forthcoming expansion of the Court's authority.
This article is devoted to the study of constitutional judicial review and aims to demonstrate
the reasons for inefficiency and identify promising directions for improving the Court. The researchis based on the Constitution's norms, the Constitutional Law "On the Constitutional Court of the
Republic of Uzbekistan", and academic articles of domestic and foreign scientists-constitutionalists.
II. The Current State of Constitutional Control
Analyzing the formation of the system of constitutional control, Professor T.Ya.Khabrieva(Russia), claims that "The constitutional reform gave impetus to the practical functioning ofамалга ошириш ва инсон ҳуқуқларини ҳимоя қилишда конституциявий суднинг роли: Ўзбекистон ва хорижий
мамлакатлар тажрибаси: халқаро илмий-амалий конференция материаллари. – Т.: Baktria press, 2016. С.37-43.
2Мирбабаев М.Ш. «Компетенция Конституционного суда Республики Узбекистан». Вестник Конституционного судаРеспублики Узбекистан. Выпуск 3. Ташкент. 1999. С.83-86.
3Мухамеджанов О.З. «Судебно-правовая реформа и развитие конституционного правосудия в Республики Узбекистан».

Журнал «Государство и право». 2018, №2, 84-92.
4Арутюнян Г.Г. Конституционный контроль: характер функционирования и характер развития системы. Монография. -М., 1997.; Нечкин А.В. Органы конституционного контроля стран СНГ: порядок формирования и компетенция.
//Научный ежегодник Ин-та Философии и права Урал. отд. Рос. акад. наук, 2018. Т.18, вып.4, с.75-96.; Гордеев И.В.
Конституционная юстиция в государствах-членах СНГ. Автореферат диссертации на соискание ученой степени
кандидата юридических наук 12 00 02 - конституционное право; муниципальное право. М.: Московский университетМВД России. 2007. 22 с.
5Брежнев О.В. «Развитие института конституционного правосудия в Республике Узбекистан: проблемы теории ипрактики». Вестник Томского государственного университета. 2020. № 451. С. 185–195.
6

Ismatov Aziz. «The Constitutional Judiciary and its Role in the Democratization Process in post-Soviet Central Asia. The

Constitutional Court in Uzbekistan». http://cale.law.nagoya-u.ac.jp/_userdata/alb5_01_Aziz.pdf. (Дата обращения 28.09.2020)

111

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

structures designed to carry out these functions, and entailed the establishment of new ones." 7
Nowadays, constitutional review exists in 164 out of 193 countries, of which 74 implement a
European constitutional review model. 8 In particular, almost all post-Soviet republics havedesigned their constitutional courts according to the European model.
The constitutional control in Uzbekistan emerged after the collapse of the USSR and obtaining
independence. It is particularly associated with adopting the 1992 Constitution of Uzbekistan andgradual transition from a quasi-judicial body - the Soviet Committee of Constitutional Review
towards the Constitutional Court.
The Constitution integrates the Court within the judicial system. As a special judicial body, theCourt expected to ensure the Constitution's supremacy and its direct effect. The Constitution
determines the Court’s status and guarantees its independence.
President of Uzbekistan initiated cardinal changes in the judicial and legal system and thus,
paved the way for a new stage in constitutional control’s development. Within the so-called ‘20172021 Action Strategy for Uzbekistan’s development’, fundamental judicial and legal reforms fall
into one of five priority areas. This interalia has resulted in the constitutional amendments ofarticles 80, 93, 108 and 109, which govern constitutional control effectiveness.
Following constitutional amendments, parliamentarians adopted a new version of theConstitutional Law "On the Constitutional Court of the Republic of Uzbekistan". The law contains
several new provisions, the implementation of which guides a current state of constitutional control.
This law was adopted as a Constitutional Law. Such a status increases enormously the Court's
status and significance within the frames of the public system. From now on, the Court’s judges areelected by the Senate upon the President’s proposal. In turn, this proposal stems from the list ofjudges issued by the Supreme Judicial Council. Thus, apart from Parliament and President, there isa new specialized body – the Supreme Judicial Council that pertains authority to participate in theprocess.
Court's judges elect the Chairman of the Court and his deputy among themselves at one of its
sessions. This practice certainly reinforces the principle of judicial independence and autonomy.
Previously, the President enjoyed uncontested authority to nominate judges.
Constitutional courts' practice in foreign countries imposes higher requirements on judges of
the constitutional courts. Considering this, the new law has increased the age limit for judgeship7Хабриева Т.Я. Избранные труды: в 10 т. Т. 2: монографии. Содерж.: Конституционный контроль. Правовая охрана

Конституции. Теория современной конституции. – М., 2018. 448 с, p.14.
8Арутюнян Г.Г. Конституционный контроль: характер функционирования и развития системы. Монография. – М., 1997.

197 с.

112

Constitutional Control in Uzbekistan:
Current State and Development Perspective

candidates from 30 to 35 years. A citizen of the Republic of Uzbekistan at least thirty-five years oldfrom among specialists in politics and law, who has high moral qualities and the necessary
qualifications, can be elected as a Constitutional Court judge.
It is not necessary to have legal education to become a judge of the Court. On the other hand,
there was no single case when parliamentarians elected judge from among the experts in politics.
Foreign practice demonstrates similar tendencies. For example, in Germany, "the Federal
Constitutional Court is a purely legal court". 9 A judge of the Constitutional Court of the Czech
Republic can be appointed from among the citizens with higher legal education and relevant law
expertise for at least ten years. 10 In Korea, Spain, Italy, Serbia and Croatia, legal education is also a
prerequisite for holding a judicial position.
The law stipulates that the same person cannot be elected as a judge of the Court more than
two times. The maximum age for a judge's position is 70. Such limitations are consistent with thepractice of foreign constitutional courts.
The range of eligible parties entitled to submit issues to the Court has been expanded recently
and now includes the Cabinet of Ministers and the Commissioner for Human Rights of the OliyMajlis of the Republic of Uzbekistan (Ombudsman). Hence, currently, the following subjects havethe right to submit issues to the Court: the Legislative Chamber of the Oliy Majlis; Senate of theOliy Majlis; President of the Republic of Uzbekistan; The Cabinet of Ministers; Commissioner of
the Oliy Majlis for Human Rights (Ombudsman); Jokargy Kenes of the Republic of
Karakalpakstan; a group of deputies - at least one-fourth of the total number of deputies of theLegislative Chamber of the Oliy Majlis; a group of senators - at least one-fourth of the total numberof members of the Senate of the Oliy Majlis; Supreme Court; Attorney General. A question for
consideration by the Constitutional Court may also be submitted on the initiative of at least three
judges.
Expanding the circle of subjects who have the right to submit an issue to the Court isundoubtedly a positive norm that aims to expand access to constitutional justice.
The Constitutional Court of Uzbekistan is a constitutional control body oriented towards
implementing subsequent control (ex-post). Simultaneously, with the new law's adoption,
preventive control (ex-ante) has been partially introduced. The law entrusts the Court to determine
the constitutional compliance with constitutional laws, laws on the ratification of international
treaties - before their signing by the President of the Republic of Uzbekistan. Thus, recent

9Конституционный контроль в зарубежных странах: коллективная монография. Под ред.: Е.А.Павлова, Е.А.Кремянской.

– М.: МГИМО-Университет, 2015. 341 с, p.14.
10Ibid, p.36.

113

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

legislative novelties introduce a new form of constitutional control - preventive control over theconstitutionality of constitutional laws and laws on international treaties' ratification.
It should be noted that preventive control is a new form of control, and its implementation
raises several issues.
The law stipulates that the President must sign and promulgate the law within thirty days.
According to the Constitutional Law "On the Constitutional Court of the Republic of Uzbekistan",
the Court begins to study the issue no later than seven days, and the decision on the issue is taken
no later than three months. The legislative norms governing the timing of adopting a decision by
the Constitutional Court should be synchronized with the signing and promulgation of laws by the
President.
The Constitutional Court also considers appeals of the Supreme Court, that originate in
specific cases of lower courts regarding the compliance of the normative legal acts applied inparticular cases with the Constitution. Previously, this right belonged to the Chief Justice of theSupreme Court only. Considering this body's collegial structure, such a right is vested with the
Plenum of the Supreme Court.
The law prescribes that the Court, based on the generalized results of the constitutional
proceedings practice, annually submits information on the state of constitutional legality in the
country to the chambers of Parliament and the President of the Republic of Uzbekistan. It should be
noted that such an informative function is a legislative novelty. Ensuring constitutional legality is asystem of measures aimed at preventing violations of constitutional legality.
One of the important guarantees of the Court’s independence is related to its financial
framework. The law provides that the financing of the Constitutional Court activities is carried out
at the public budget expense and is provided for in a separate line.
III. Prospects for the Development of Constitutional Review
The constitutional review in Uzbekistan is still far from being perfect. Certain problems hinder
the implementation of effective constitutional review. Such problems include the passiveness of theconstitutional control subjects, the absence of a constitutional complaint, and the imperfection oflegal mechanisms for implementing constitutional control.
Assistant Professor of Nagoya University A. Ismatov (Japan) asserts that “a closer look at themodern system of constitutional control in Uzbekistan, especially at its static condition,

114

Constitutional Control in Uzbekistan:
Current State and Development Perspective

demonstrates serious concerns about the issue of protecting fundamental rights and promoting
democracy”. 11
This situation actualizes the issues of further improving the activities of the Constitutional
Court. Currently, a new draft Constitutional Law "On the Constitutional Court of the Republic of
Uzbekistan" stipulates the expansion of the Court’s authority in the form of increasing the numberof eligible parties that have standing to bring complaints, and the introducing constitutional
complaint.
Such tendencies aim to ensure effective protection of human rights and freedoms, determine
the use of various forms of citizens' access to constitutional justice. The constitutional complaint isan effective instrument for guaranteeing the protection of constitutional rights and freedom of
citizens. Undoubtedly, empowering citizens and legal entities with the right to submit an issue tothe Court is an important step in democratizing society.
Introduction of a constitutional complaint may indeed become an important step towards
strengthening constitutional justice.
The experience of foreign countries clearly shows that constitutional review without
constitutional complaint cannot be effective. Professor V. A. Kryazhkov (Russia) rightly noted,“the presence of such a procedure largely determines the meaning of the existence of theConstitutional Court, and, on the contrary, its absence would noticeably devalue constitutional
justice”. 12
The essence of a constitutional complaint lies in a citizen's right to check the constitutionalityof a law that allegedly violates his rights and freedoms. At present, citizens have indirect access toconstitutional justice by appealing to competent entities that have standing. Along with this, theCourt’s proceeding can be initiated if at least three judges of the Court agree with the arguments
given in the citizens' appeal. In this case, the judges, on their initiative, can bring the issue to the
Court’s session. However, such initiation and further participation of the same judges inconsideration of the same issue conflicts with the principle of judges' impartiality and objectivity.
Therefore, the practice of initiating questions by the judges of the Court should be abandoned.
As it is obvious in constitutional courts' practice in foreign countries, many complaints madeon formal grounds are inadmissible and unfounded. Therefore, most applications are dropped out at
the preliminary stage of a case study. For example, the Federal Constitutional Law "on the11

Ismatov Aziz. «The Constitutional Judiciary and its Role in the Democratization Process in post-Soviet Central Asia. The

Constitutional Court in Uzbekistan». http://cale.law.nagoya-u.ac.jp/_userdata/alb5_01_Aziz.pdf. (Дата обращения 28.09.2020)12Кряжков В.А. «Российская модель конституционной жалобы». Конституционное и муниципальное право. 2012. №5,

с.65-71. С.71, p.71.

115

Nagoya University Asian Law Bulletin Vol.6 (March 2021)

Constitutional Court of the Russian Federation" stipulates that the Constitutional Court's Secretariat
preliminarily considers citizens' applications. In Korea, the Constitutional Court's President may
appoint a group of three judges to the Constitutional Court to preliminary review a constitutional
complaint. Based on the preliminary consideration's positive results, the submitted constitutional
complaint is then being forwarded to the Court’s consideration. In Germany, sub-chambers werecreated within each chamber of the constitutional Court for preliminary verification of
constitutional complaints and deciding on their admissibility. 13
Another criterion for a constitutional complaint's admissibility is the exhaustion of allavailable legal remedies. For example, in Lithuania, an essential condition for applying to theConstitutional Court is a requirement to exhaust all instruments of legal protection. 14
Hence, this paper suggests that a preliminary study of appeals is generally compliant withlegal requirements. Certain requirements for the admissibility of a constitutional complaint should
be envisaged. In particular, the appeal can be permissible if the law allegedly violates citizens andlegal entities' constitutional rights and is being applied in a specific completed ordinary case. A
constitutional complaint must be lodged no later than one year from the date of the end of
considering the case in the instant Court. So, the end of the case's consideration in the instant courtmeans that the person has used all available legal remedies before applying to the Constitutional
Court.
Many countries' experience shows that empowering citizens with such a standing leads to a
sharp increase in the constitutional courts' workload. For example, every year, the Constitutional
Court of Germany receives more than 5000 applications from citizens, 15 whereas in Russia, about
15000. 16 Meanwhile, a significant part of requests is being dropped out at the preliminary study
stage. Thus, in Germany, only about two per cent of complaints received have a chance for further
review.
The introduction of the constitutional complaint into the Constitutional Court activities of
Uzbekistan will gradually increase its workload. This process will also require establishing clear

13Конституционный контроль в зарубежных странах: коллективная монография. Под ред.: Е.А.Павлова, Е.А.Кремянской.

– М.: МГИМО-Университет, 2015. 341 с, p.88.
14

Aušra Kargaudienė. «Individual Constitutional complaint in Lithuania: Conception and the legal issues». Baltic Journal of Law& Politics. Volume 4, № 1 (2011). https://content.sciendo.com/view/journals/bjlp/4/1/article-p154.xml (Дата обращения
28.09.2020)15Официальный веб-сайт Конституционного суда ФРГ. https://www.bundesverfassungsgericht.de/DE/Verfahren/Jahresstatisti

ken/2019/statistik_2019_node.html (Дата обращение 14.09.2020).
16

Pan Mohamad Faiz Kusuma. The Role of the Constitutional Court in Securing Constitutional Government in Indonesia. P.39.

https://espace.library.uq.edu.au/data/UQ_412310/s4282430_final_thesis.pdf (Дата обращение 28.08.2020).

116

Constitutional Control in Uzbekistan:
Current State and Development Perspective

application guidelines, admissibility criteria, and experienced professionals of the Court's structuralunits.
It is necessary to empower the Court's apparatus with the right to a preliminary analysis ofapplications received from citizens and legal entities and verify their compliance with thelegislation's requirements.
The Court is a collegial body and all issues related to its authority are considered only at its
session with all judges' participation. To make a decision, at least one-quarter of the total number ofjudges must be present at Court’s session.
The introduction of a constitutional complaint will particularly lead to an increase in judges'
workload. This, in turn, will require an increase in the number of judges. In most countries, thenumber of judges of the Constitutional Court is nine, whereas, in some countries, the number ofjudges varies from 12 to 19.
The Court's current quantitative composition does not allow to cope with the expected growthof appeals successfully. The application of a constitutional complaint in the Constitutional Court’s
practice requires expanding the Court's composition to at least nine judges.
The next topical issue of the development of constitutional review is related to courts ofgeneral jurisdiction. The law requires the Constitutional Court to consider the Supreme Court's
appeal, initiated by the lower courts, on the constitutional conformity of the normative legal acts inparticular cases.
Article 116 of the Civil Procedure Code provides for the lower courts’ obligation to suspend
the proceedings before the Constitutional Court issues its decision in individual cases. However,there is no exact algorithm for a judge of general jurisdiction. In other words, there are no wellelaborated circumstances to doubt the constitutionality of a legislative act, the effect of which isdecisive for the case in question. The law is silent on how a judge of the first instance should act if
there is a doubt about the constitutionality of a normative legal act applied in a particular case. It is
unknown whether a judge of an ordinary court should apply to higher authorities or send appeal
directly to the Supreme Court? Currently, the Supreme Court's Plenum that guides upon eligibility
to submit appeals to the Constitutional Court originating from ordinary courts’ cases. This
cumbersome system does not justify itself. Therefore, the courts of general jurisdiction are notinclined to apply to the Constitutional Court.
According to the Indonesian scholar Pan Mohamad Faiz Kusuma, “… if ordinary court judges
doubt the constitutionality of laws and regulations relevant to the case, they can refer to the117Nagoya University Asian Law Bulletin Vol.6 (March 2021)

Constitutional Court. The absence of this mechanism led judges of general courts to ignore thegrounds of constitutionality.” 17
It seems appropriate to empower judges of general jurisdiction to submit issues forconsideration by the Constitutional Court. Such a step would be consistent with foreign practices(Germany, Italy, Korea, Russia).
The introduction of the constitutional complaint will contribute to the intensification of theConstitutional Court's activities and serve the implementation of Article 44 of the Constitution,
where everyone is guaranteed judicial protection rights and freedoms. The importance of aconstitutional complaint is not limited to enlargement of access to constitutional justice; it also
serves as a legal mechanism to improve the quality and effectiveness of laws, ensure
constitutionality, and further democratize the state's life society.
IV. Conclusion
The current development of constitutional control enshrined in the Constitutional Law "on theConstitutional Court of the Republic of Uzbekistan" of 2017 reflects many innovations. The
number of eligible parties who have the standing to submit an issue to the Constitutional Court has
been expanded. This step widens access to constitutional justice. This law also introduces apreventive control over the Constitution's compliance with constitutional laws and laws oninternational treaties' ratification. Nevertheless, the current state of constitutional review in
Uzbekistan is static. The legal mechanisms for the implementation of constitutional justice need to
be improved. Indirect access of citizens to constitutional justice is not an effective mechanism forensuring effective protection of citizens' constitutional rights. The Court’s judges' eligibility toinitiate a constitutional review and their further participation in the proceedings contradicts theprinciple of impartiality and objectivity.
At present, policymakers plan to introduce constitutional complaint. Such a step willundoubtedly ensure effective protection of citizens' constitutional rights and freedoms andstrengthen constitutional control.
While introducing a constitutional complaint, one should consider the following successful
practices from constitutional courts of foreign countries;

17

Pan Mohamad Faiz Kusuma. The Role of the Constitutional Court in Securing Constitutional Government in Indonesia. P.39.

https://espace.library.uq.edu.au/data/UQ_412310/s4282430_final_thesis.pdf (Дата обращение 28.08.2020).

118

Constitutional Control in Uzbekistan:
Current State and Development Perspective-

Developing criteria for the admissibility of a constitutional complaint. In particular, theappeal is admissible provided that the constitutional rights and freedoms of citizens in the specificcomplete case were allegedly violated;-

The constitutional complaint must be brought no later than the term provided by law.

-

Introducing a procedure for preliminary analysis of applications received from citizens andlegal entities, verifying their compliance with the legislation's requirements, giving this right to thestructural units of the Constitutional Court apparatus.
Simultaneously, it is necessary to adjust the legislative norms that govern the Court's deadlinesof adopting a decision. In particular, deadlines should be synchronized with the timing of thesigning and promulgation of laws by the President. It is also necessary to abandon the practice ofinitiating questions by judges of the Constitutional Court, giving judges of general jurisdiction theright to submit questions to the Constitutional Court.
Thus, the adoption of the new version of the Constitutional Law "On the Constitutional Courtof the Republic of Uzbekistan" will serve to strengthen constitutional control, strengthen
constitutional legality in the country, improve constitutional proceedings and, ultimately,
effectively protect the rights and freedoms of citizens guaranteed by the Constitution of the country.

119Nagoya University Asian Law Bulletin Vol.6 (March 2021)

120