ENSURING PROTECTION OF A RIGHT OF OWNERSHIP BY THE JUDICIAL SYSTEM

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The problem of protecting fundamental human rights and freedoms is one of the universal ones – these are values, which are subject to priority protection in all spheres of public and state life. In general scale of humanitarian values, human rights occupy a central place in the same level as a value of a person himself. In any democratic system, the rights and freedoms of citizens, as well as their legal duties, constitute the most important social, political and legal institution, which serves as an indicator of maturity of a society.

One of 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.

The protection of ownership title is carried out on the basis of civil law norms that: establish the ownership of material goods to the subjects of civil legal relations; determine the degree of their property isolation; provide owners with the conditions for the exercise of their rights within certain limits; establish unfavorable consequences for persons, who violated the rights of owners. Protection of property rights is tied with state regulation of the distribution of property between subjects of civil law, as well as with state permission to have and dispose of property within certain limits.

An example of the distinct attention of the judiciary to the protection of property rights is seen in a number of Resolutions of the Plenums of the Supreme Economic Court and the Supreme Court of the Republic. The most significant is the Resolution of the Plenum of the Supreme Economic Court of the Republic of Uzbekistan (as amended on May 19, 2018 No. 17) “On some issues of the application of legislation by economic courts when considering cases on the recognition of ownership”, which provides:

“When considering cases on the matter of recognition of property rights, the courts must strictly follow the Constitution of the Republic of Uzbekistan, the Civil Code of the Republic of Uzbekistan (hereinafter referred to as the CC), the Economic Procedural Code of the Republic of Uzbekistan (hereinafter referred to as the EPC), the Law of the Republic of Uzbekistan “On Property in the Republic of Uzbekistan”, as well as other regulatory legal acts.”

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 Plenum clarifies the procedural provisions:

“It is necessary to draw the attention of the economic courts to the fact that the cases on the recognition of ownership and on the establishment of facts of legal significance are procedurally different from each other.

If there is a dispute in cases on the recognition of ownership, they are considered on the basis of the claim and with presence of the parties (the plaintiff and the defendant), as well as, if necessary, third parties are involved.

Cases on the establishment of facts of legal significance are initiated on the basis of applications for the establishment, change and termination of the rights of citizens and organizations in the economic sphere. Since there is no dispute in these cases, they are considered with the participation of the applicant, and if necessary with involvement of interested parties. In such cases, there is no respondent.

If a claim for the recognition of ownership is submitted to the court, but its content implies the requirement to establish a fact of legal significance, then the court refuses to satisfy such claim”.

Analysis of the main provisions of the Resolution of the Plenum of the Supreme Economic Council of the Republic of Uzbekistan and similar Resolutions of the Plenums of the Supreme Court of the Republic of Uzbekistan demonstrate clearly that, ultimately, judicial practice have become the cause of so-called absolute force for the recognition of ownership: a person who did not participate in the consideration of the case for the recognition of ownership cannot bring a claim on invalidation of a registered property right without first challenging the court decision. The basis for refusal to satisfy claims for recognition of ownership in such cases is provided by Article 15 of the EPK RUz, which establishes that judicial acts are binding on public authorities, self-government bodies, other bodies, organizations, officials and citizens, and subject to execution throughout the territory of the Republic of Uzbekistan.

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 a 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.

However, here, the main emphasis should be made not only on the point of execution of the court decision, but on real execution of the requirement of a legislation expressed in the court decision.

Khaji-Murad ISAKOV

Director of the Supreme school of Judges

of Republic of Uzbekistan, PhD in Law