Uzbekistan — Buyuk kelajak bo'lgan Davlat!

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Uzbekistan Takes Bold Step Towards Protecting Private Enterprise

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On 5 October 2016, interim President Shavkat Mirziyoyev signed into being easily one of the most significant reforms in recent Uzbekistani history. The Presidential Decree, whose long official title I will not write out here, severely curtails the discretionary ability of the Bosh Prokuratura — translating to the General Procuracy, a term I will use in lieu of the more common, but misleading, translation of Prosecutor-General — to conduct investigations of illicit business activity, effectively abolishing one of the major forms of administrative abuse and malfeasance in Uzbekistan. For years, the Procuracy has been the bane of Uzbekistani entrepreneurs, using the threat of short-term imprisonment or temporary cessation of business activities to coerce business owners to pay the significant bribes demanded by the Procurators. The new measures to limit the discretionary ability to conduct inspections and create an ombudsman system to report abuse will cripple this system of extortion, hopefully making life a little easier for Uzbekistan’s struggling middle class. On the flip side, making the Procuracy has been one of the major institutions beating back the trend of oligarchy so dominant elsewhere in the former USSR. A major test for whatever administration inherits the new situation next year will be its ability to protect the small businessman while making sure that Uzbekistan’s wealth disparity does not become a power disparity.

The Procuracy is, second perhaps only to the secret police of the MXX, the most feared institution in Uzbekistan. In some respects, the terror inspired by procurators is a natural consequence of the organization’s responsibilities to police, and in some cases terrorize, those officials and citizens who would violate the laws and regulations of the Republic. Although they involved to some degree in all criminal cases in Uzbekistan, the Procuracy focuses on stopping out administrative and economic offenses; whereas regular police are welcomed by communities victimized by crime, a visit from the Procuracy is always a deeply unnerving experience for the unlucky hosts. Unfortunately, and counter to its aims, the Procuracy is often more interested in participating in widespread corruption and administrative malfeasance than policing it, or at least is only motivated to pursue cases selectively where the procurator has a personal interest. Borne from attempts to curb rampant administrative abuse in the early 1990s, the powers granted to the Procuracy are immense: its own independent structure accountable only the Presidency, the discretionary ability to investigate anyone for administrative or economic crime without notice or stated reason, and command of local police resources for assistance in investigations.

Of their two principle areas of authority, procurators have clearly recognized that policing economic crimes committed by the general population provides far greater opportunities for personal gain than tackling the issue of administrative crimes and rampant corruption. Accordingly, the main activity of procurators in many provinces is the professional harassment of local businesses. The impressive discretion of the Procuracy means that procurators have the ability to conduct inspections and order brief periods of detention for questioning as often as they want without having to provide justification. Procurators will usually exploit these powers to making businesses essentially inoperable, using the sheer number of inspections, raids, and mandatory audits to force businesses into bankruptcy. Faced with the prospect of having their enterprises killed under the weight of administrative procedures, most business owners choose to instead pay the procurators a portion of their profits in return for the right to continue operating. Those recalcitrant businesses, often run by regional elites who believe that their participation in other corrupt associations exempt them from being extorted themselves, that resist procurators are subject to so many concurrent audits, police inspections requiring temporary cessation of business activities, and temporary detentions that it becomes impossible for the business to actually stay open for more than a few hours a week, resulting in eventual bankruptcy.

Although there have occasionally been cases where procurators are persuaded (read: bribed) to ignore corruption or tax violations by major industrialists, most procurators recognize the power of their existence outside of the provincial command structure and prefer to fine and harass oligarchs into submission rather than receiving kickbacks on someone else’s terms. Despite being an example of deep seated and troubling corruption, the tendency of procurators to dominate economic life in all but the most organized regions has been important for curtailing the influence of the oligarchic industrialists, who have risen to power in the vast majority of the former Eastern Bloc. One of the primary reasons why the Karimov administration decided to maintain the current system of presidential appointment of procurators, despite numerous calls for accountability to regional governments, was that the power of the Procuracy kept regional elites in line and preventing wealth and local power from coalescing as they had elsewhere in the former USSR. Uzbekistan has especially looked towards its neighbors as cautionary tales about the dangers of growing wealth disparity, seeing how it fueled resentment of government in both Kazakhstan and the Kyrgyz Republic — with the Kyrgyz Republic providing an especially harrowing account of how disgust at the extravagant personal wealth of the elite could develop into revolution. In a society as stability conscious as Uzbekistan, the punitiveness of the Procuracy towards successful entrepreneurs was seen as a net positive in that it prevented other forms of corruption and exploitation that could be potentially more damaging to the Republic.

The Presidential Decree passed by Mr. Mirziyoyev last week will radically change the procuratorial system in favor of private enterprise, creating a new regime to hold the Procuracy nationally accountable to the Oliy Majlis, curtailing some of the Procuracy’s expansive discretionary powers regarding searches, instituting a system of compensation to businesses whose activities where disrupted, and mandating leniency for first time offenders. First of all, the discretion exercised by the Procuracy over the conduct of investigations of economic crimes will be changed to prevent unannounced inspections from being initiated unless a business is claiming bankruptcy. This change already removes an important tool from the arsenal of extortion used by the Procuracy, as procurators are now required to fill out paperwork in relation to their inspections of businesses. This on its own only imposes a single barrier to abusive behaviors, but the new systems of procuratorial accountability for lost business and the ombudsmen for reporting abuse engender this requirement to record activities with a new significance, as the activities of procurators now generates enough paperwork to clearly exonerate or condemn their actions. Whereas previously the only recourse for those victimized by procurators was an appeal to the President, now those being exploited can claim financial compensation in court and report their abuse to an ombudsman controlled by Parliament, in theory holding the Procuracy accountable to a national public authority.

On the more negative side, these reforms may have limited practical effects on actually providing recompense to those abused by procurators; the lower courts of Uzbekistan are infamously deferent towards the police and Procuracy and have a reputation of ruling against compensation regardless of evidence to the contrary, and the results of any inquiry by the parliamentary ombudsman is likely to be limited to the General Procuracy shuffling its bad eggs between districts rather than actually holding them criminally accountable for their actions. Additionally, the Procuracy retains the free use of short-term imprisonment and the initiation of audits, arguable its two more powerful measures to coerce businesses into submission. Despite these very real limitations in the successful implementation of the new measures, come 1 January 2017, there will be a very different system in place for procurators who wish to continue abusing their positions of power. Before this measures, the abusive exercise of procuratorial authority was relatively easy: the necessary manpower resources were at your disposal, you did not need to provide explanation for your actions, holding you accountable required the intervention of the Presidential apparat, and you could make the lives of others very difficult without having to navigate extensive paperwork and administrative procedure. Next year several of these assumptions will be drastically changed, as procurator wishing to extort a business will need to wait until abuses are reported or the regular inspection date comes around to harass businesses into closing, or violate this law and undergo the exhausting process of convincing (read: bribing and/or threatening) a judge to ignore the offense, even then risking censure from the Oliy Majlis, including the possibility of imprisonment for administrative offenses. The successful abuse of power will now require significant coordination and effort. Although I would never doubt the effort that people will put into not doing their jobs, exploiting businesses will now be a risky and laborious activity, not a simple and routine activity. This may be enough to set at least a few prosecutors back on the straight and narrow.

As in Uzbekistani criminal law more generally, this new law attempts to provide methods to distinguish between innocent businesses, which may or may not have violated some elements in Uzbekistan’s fiendishly complex Tax Code, and serious offenders, whose criminal activities require the full power of the Procuracy to combat. The direct influence of this distinction comes in the form of a legal requirement that penalties for violation of tax laws or business regulations be ignored in the case of first offenders, under the assumption that their conviction stems from a combination of confusion over difficult regulations and aggressive slander by the Procuracy, rather than malice. More generally, the limits imposed by the new regulation attempt to curb procuratorial abuse without defanging the Procuracy as a whole. For starters, the ability of the Procuracy to punish administrative crimes is unhindered by the new law, meaning that procurator retain their significant powers over the rest of Uzbekistani officialdom. Secondly, the limits imposed on procurators should not effect their ability to pursue charges against ‘actual crimes’ by legitimately fraudulent enterprises. The new measures going into effect in 2017 mainly establish new forms of accountability, systems that should encourage, not punish, the Procuracy for pursuing legitimate cases against tax fraud, irregularity of permits, or other workplace offenses. I cannot foresee any situation where the ability of the Procuracy to prosecute serious economic crimes is hampered by a requirement to inform businesses of inspection or where that powerful arm of law enforcement would be punished using the new ombudsman for the legitimate performance of its duties.

The new regime of procuratorial accountability coming into effect next January should not degrade, in any meaningful way, the ability of the Procuracy to police economic crimes or its diminish its role in preventing the cementation of oligarchic power among economic elites. The core tools of the Uzbekistani government to preventing the nouveau riche from buying their way into power, as they effectively have in Russia, Ukraine, Kazakhstan, the Kyrgyz Republic, and Latvia, have been left entirely in tact by this reform of the Procuracy. Those individuals who legitimately violate economic laws, or develop their own patronage networks among local administration, can still be expected to face the brute force of the Procuracy. Even if the ability of the Procuracy to attack the economic foundations of oligarchy has been crippled, they still have the tools to root out the administrative corruption and bribery upon which patronage networks depend. At the end of the day, the procurator remains the most powerful official in Uzbekistan, and the idea that economic might could someday displace his official power is ludicrous. The measured passed on 5 October should keep the Procuracy true to its predatory nature, but make sure that it stays higher in the food chain, leaving the small fry of local entrepreneurs and business-owners to create jobs and grow the wealth of the nation in peace.

Source:

UzDaily. “Uzbekistan abolishes unplanned and counter inspection of businesses”. UzDaily.com, 5 Oct. 2016.

Roberts, Ken. “Post-Communist youth: is there a Central Asian pattern?”. Central Asian Survey, vol.29, no.4 (2010): 537-549.

UzDaily. “Uzbekistan to establish institute of Business Ombudsperson”. UzDaily.com, 5 Oct. 2016.

Lewis, David. “Tackling Corruption in Uzbekistan: A white paper”. New York: Open Society Eurasia Program. 2016.

United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. “Initial Report of States parties due in 1996: Uzbekistan”. (CAT/C/32/Add.3), 24 August 1999.

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Author: Sam

I study international relations and public policy at the University of Edinburgh. My research is focused on political systems and economic development in Post-Soviet states.

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