Developer’s attempt to punish residents of Yunusabad-8 for protesting

In July 2024, a very interesting lawsuit started in Tashkent: the construction company “Innovative Sifat Stroy” LLC sued 13 residents of the 8th quarter of Yunusabad with the demand to compensate moral and material damage in the amount of almost 3 billion soums (=230000$), more precisely material losses were in the amount of 905 million soums (=70000$) and moral damage in the amount of 2 billion soums (=153200$). In its application, the LLC indicated that it suffered reputational damage due to all kinds of messages in social networks .

Also, the LLC allegedly suffered because of the preliminary protection measures imposed by the court, which was expressed in the suspension of construction works for 6 months .

This case numbered 2-1001- 2405/25632 was considered by Judge M.M.Boboraimova in the Civil Court of Mirzo-Ulugbek district of Tashkent city .

The plaintiff INNOVATIVE SIFAT STROY LLC was represented by attorney A. Mengliev, who was a judge in the recent past.

During the process, the plaintiff withdrew claims against two residents and 11 defendants remained.

Background:

On February 5, 2018, the Khokim of Tashkent by his decision No. 187, allocated to “Franchising Invest” LLC, affiliated with the company Murod Building, a land plot of 1,23 ha in the residential quarter Yunusabad- 8 between the buildings 17, 18,19 and 20. Before, this plot was held on lease by the residents as parking. There was also a playground and a small public garden. The khokim’s decision No. 187 authorized to construct there some multi-store apartment buildings.

In December 2019, Franchising Invest LLC was reorganized into Murad Buildings LLC. All powers and obligations, and together with it the rights to the land plots and facilities located on them were transferred to the latter.

On October 26, 2021 “Murad Buildings” LLC sells to “Innovative Sifat Stroy” LLC the unfinished construction of a multi-storey residential building with the area of 1242 m2. The founder of both Murad Buildings LLC and Innovative Sifat Stroy LLC is Murodjon Taxirdjanovich NAZAROV.

The developer should obtain the consent of the residents. The area of the land plot allocated by the decision is 1.23 hectares.

The residents of nearby houses were not at all satisfied with this construction and demolition of the parking lot and other objects of social and cultural life.

1. In 2023, a group of residents applied to the Tashkent Inter-District Administrative Court with a petition to invalidate the approval of design and estimate documentation of a residential building issued by the Tashkent City Department of Construction and Housing and Communal Services. According to the court decision dated 07.08.2023, the judge refused to satisfy the applicants’ petition.
2. In the same year 2023, another group of residents filed a new application to the Tashkent Inter-District Administrative Court. They asked to invalidate the decision of the Tashkent City’s Khokim No. 187 dated 05.02.2018 on the allocation of land plots, on the construction of a multi-storey residential building on a land plot of 1.23 hectares located between houses 17-19 and 20 on the Yunusabad-8.

In this case, according to the ruling dated 08.09.2023, the court granted the application for the so-called «preliminary protection measures» and ordered to stop the construction works carried out by FRANCHISING INVEST and INNOVATIVE SIFAT STROY on the above-mentioned territory. The construction works were temporarily suspended.

By decision dated 13.11.2023, the Interdistrict Administrative Court of Tashkent refused to recognize the decision of the Tashkent City Khokim No. 187 dated 05.02.2018 as illegal. On the basis of this court decision and from the day of its issuance, the preliminary protection measures were canceled and the construction was resumed.

The applicants, dissatisfied with this decision, appeal to the court of appeal of the Administrative Court of Tashkent City, their appeal was left without satisfaction.

3. “However, after 3-4 months of wandering through the courts for no reason,” as the developer writes in his lawsuit, a group of residents filed a new complaint with the Tashkent Inter-District Administrative Court against the Tashkent City Department of Construction, Tashkent City Department of the State Cadastral Chamber to invalidate the Conclusion of the Council for Architecture and Urban Planning and the state registration of a certain structure at the above address.

INNOVATIVE SIFAT STROY LLC acted as a third party in this process.

By court decision of 03.04.2024 the applicants’ motion was rejected because, as the judge wrote, “the plaintiffs’ rights were not violated by the cadastral documents in relation to the LLC”.

It should be noted that the citizens were denied all the claims on the grounds that the decisions of state bodies in favor of the developer did not violate the rights of citizens.

It is obvious that Uzbek judges are not familiar with the UN provisions on the right to adequate housing, which includes not only living conditions inside the apartment, but also a favorable environment for life: the presence of green areas and safe spaces for citizens.

The court’s judgment #2-1001- 2405/25632 is then quoted in setting forth the following facts.

Claim of the developer on the process 2-1001- 2405/25632 at 2024 in the Mirzo-Ulugbek Civil Court of Tashkent :

The plaintiff “INNOVATIVE SIFAT STROY” LLC in its statement explained its subject of claim against the defendants as follows:

• citizens filed “unfounded claims, causing material and moral damage to the developer,
• the time necessary for construction was lost as a result of unreasonable appeals to various instances, “the defendants deliberately resisted the timely and correct resolution of the case”.

It is important to note that the preliminary protection measures in the form of stopping the construction were imposed in September 2023 and lifted in March 2024.
For six months the construction site stood idle. And it was this downtime that the developer counted as material damage.

Material damage:

1. According to the calculations of the developer, if the excavation had been started in September 2023, the construction and installation works would have been performed for 807,767,857.00 soums (=62000$), taking into account inflation up to April 2024, the amount of damage would have increased to 1,135,377,412.00 soums (=87000$). That is, here we see not actual figures of real material damage, but just dreams of the developer.
2. 606,824,714.00 soums (=46/500$) were used for the beautification of the mahalla,
3. 102,700,000.00 soums (=7870$) for the Lawyer’s services,
4. Land tax : 155,806,490.00 soums (=12000$),
5. Office rent : 28,776,000.00 soums (= 2204$),
6. Other taxes : 10,797,263.00 soums (=830$).

The developer has calculated its actual and hypothetical material damage due to the delay at 904,904,466.00 soums (=70000$)

Objections of the residents :

Excavation works:

It should be noted that construction works were initially stopped by the Tashkent City Construction Department, and then by court decision, and the defendants were not at fault.

“INNOVATIVE SIFAT STROY” obtained a permit for construction only in March 2024. So, in September 2023, the developer had no right to start construction work because it did not have a permit.

The Center for Expert Review of Urban Planning Documentation issued its expertise No. 201737 for the construction of high-rise residential buildings by INNOVATIVE SIFAT STROY only on March 16, 2024. And the facility was not put on record for commencement of construction work until 27.03.2024.

According to this expertise , the facility of “INNOVATIVE SIFAT STROY” was registered for the beginning of construction and installation works at the address Yunusabad-8, MFU “Nurmakon”, house 51.

All these data are given from the above mentionned court decision #2-1001- 2405/25632 .

It turns out that all claims of the developer for allegedly incurred damage due to the delay in construction were unfounded.

Beautification of the mahalla :

In the court session, the lawyer of “INNOVATIVE SIFAT STROY”, Mengliyev A. explained that one of the requirements of the investment contract is the beautification of the territory. And allegedly the developer claims the residents to reimburse damages for these works in the amount of 607 million soums.

However, the residents responded that they did not make any demands to improve their neighborhood. And if the developer had carried out some landscaping works in front of some multi-storey residential buildings, they carried them out at their own will. Indeed, the decision of the khokim on allocation of the land plot provided for the improvement of the territory. However, it also provided for obtaining the consent of the district residents, which the developer failed to obtain in full.

In addition, as the residents showed, improvement works were carried out on the territory of the neighboring mahalla “Mingchinor”, while their mahalla is called “Nurmakon”, and no improvement works were carried out there .

On the contrary, in Nurmakon mahalla, the developer cut down trees, blocked the roads where children go to school, and demolished parking lots. Residents cannot live peacefully in this neighborhood, suffer from noise and call the police every day, the construction has disrupted their normal way of life, they have suffered moral suffering as a result of this construction, and citizens are forced to park their vehicles in the courtyard of the house.

The developer is carrying out construction works contrary to the requirements of the current legislation. Tired of noise, dust and construction debrs, the residents filed several complaints with the administrative court in order to restore their violated rights, that after the court’s rejection of the complaints against the court decisions, they filed appeals to higher instances. In addition, the residents also suffered bullying by the developer.

On May 17, 2023, local residents protested against the construction of another “house” between houses 17, 19 and 20, but they were beaten up by employees of the “Franchising invest” company.

Representatives of the construction company, who clashed with residents opposing the construction of a multi-story building in Tashkent’s Yunusabad district, were sentenced to ten days of administrative arrest. This was reported by the Tashkent Police Department on May 21. Those sentenced to ten days were found guilty in court under Article 183 of the Administrative Liability Code (“Petty Hooliganism”) .

On this basis, the residents filed a counterclaim against the developer for the amount of one trillion soums (=76,5 mlm $). This claim was not satisfied, the judge did not even ask how the residents had withdrawn this amount and did not propose to agree on another amount.

The residents reasonned by the fact that their constitutional rights are violated, the requirements of the Urban Planning Code, the Law “On Nature Protection” and construction norms are not observed .

The citizens also stated that as taxpayers they have the right to live in a clean environment. They expressed their dissatisfaction with the construction and installation works, applied to a number of state bodies and controlling bodies, but they were not given practical assistance, as a result of which they applied to the court to restore their violated rights.

Citizens also stated about deterioration of their health not only because of environmental degradation and inconvenience since the beginning of construction works between houses 16, 17, 18, 48, 49 and 50 on the block Yunusabad-8, but also because of moral harassment.

All defendants in this lawsuit, namely the residents, stated that they are doomed to live in dust and constant noise, that it is impossible to open the windows of the house due to dust emitted as a result of construction, that construction continues until midnight, as a result of which they suffer physically and morally, and asked for compensation for the moral damage caused.

Claim of the developer on Moral damage :

The developer assessed moral damage in the amount of 2,000,000,000.00 sum (=153200$), and it was caused, it turns out, due to the fact that citizens “provided knowingly false and unreliable information to courts and other state organizations, which negatively affected the business reputation of the company”.

During the process, the developer did not present, for example, a drop in sales, the refusal of customers to buy apartments precisely because the company is in the process of litigation.

“What kind of reputation do you have? In the construction rating of the Ministry of Construction and Housing and Communal Services your company has the lowest rating – DD. Your company is a small business with a small staff and a small authorized capital. Where did the losses for such an amount come from?”, asked the defendant in the case, civil activist Alisher Nasimov, during this process.

“Besides, the legal entity does not possess any human organs – neither heart, nor brain, nor liver. What could there suddenly suffer morally? Residents have aggravation of chronic and allergic diseases because of dust and noise, because of the fact that the construction is going on from 6 am to 11 at night, because of the fact that the yards are blocked, special vehicles drive, creating a danger for children and residents. The parking lot, where more than a hundred cars were parked, was demolished, the green alley was closed. It is the residents who suffer moral losses”, added Nasimov.

The developer insisted that it had suffered due to the reputational loss of its firm in the market due to all sorts of publications on social networks, Telegram and Facebook .

The developer applied to the court to prohibit the publications until the judgment was issued.

“The defendants published negative, derogatory and insulting comments, posts, videos in social networks, including the channel “Yunusabadtsy” (Residents of Yunusabad) in the social network “Facebook”, as well as the channel “Yunusabadtsy” in the social network “Telegram”, which cause damage to the plaintiff’s labor reputation, and as a consequence, the plaintiff’s labor reputation,” argued the lawyer of the developer .

However, to meet this requirement, the plaintiff failed to provide evidence to support his arguments. “In the case materials there is no evidence that the defendants disseminated information degrading the honor, dignity or business reputation of INNOVATIVE SIFAT STROY LLC. No defendant in the case is neither the owner nor the administrator of the said channels,” the judge writes in her decision .

Judge’s opinion

“According to the comments to Article 985 of the Civil Code of Uzbekistan, in order to be held civilly liable for infliction of harm, the following signs of crime must be present at the same time: a) inflicted damage (existence); b) unlawfulness of actions /inaction of the person who caused harm; c) causal link between the inflicted damage and violation of rights; g) guilt of the person who caused harm or guilt of the person who is responsible for control over the actions of the person who caused harm.

On the merits of the said legal norm, there is no unlawful action of the defendants in this case”, the judge writes.

“According to Article 8 of the “Universal Declaration of Human Rights”, ratified in the Republic of Uzbekistan on September 30, 1991, everyone has the right to effective redress by the competent national tribunals in cases of violation of his fundamental rights granted to him by the constitution or by law”, writes the judge . It is first time during observations of the process by the civil activists that an Uzbek juge quotes the International Law.

The judge further referred to Article 55 of the Constitution of Uzbekistan. stqting: “Everyone has the right to defend his or her rights and freedoms by all means not prohibited by law. Everyone is guaranteed judicial protection of his or her rights and freedoms and the right to appeal to the courts against unlawful decisions, acts and omissions by State bodies and other organizations and their officials”.

Based on the requirements of the legal provisions of Uzbek legislation, namely the Civil Code and the Code of Civil Procedure, the court found that the defendants had a constitutional right to appeal to the courts.

The judge found no basis to say that the defendants had committed an unlawful act under Articles 1021 and 1022 of the Civil Code here.

Also, the judge noted that “emotional suffering is a subjective state, it causes emotional states such as mental tension, discrimination, fear and excitement. It is definitely a characteristic of the physical person. A person can take a minor incident, an occurrence, seriously”.

“During the court proceedings, the plaintiff stated that the comments and posts left on social networks against him, as a result of unjustified appeals to the court, damaged his business reputation and caused moral harm, but he did not provide evidence confirming this. The court considers that there are no grounds for imposing on the defendants the obligation to compensate for moral harm, taking into account the evidence collected in the case and the legal assessment of the identified circumstances”, the judges writes .

The real reason of the claim (?)

During the trial against the residents of Yunusabad-8, an interesting document from the internal correspondence of the developer’s firm surfaced from the case documents .

This document contains an order to the lawyer, what exactly he should achieve from the court.

The document is called “Memo” and it was issued by the firm Bi-Group, “Leading developer of Kazakhstan”, as it is written on the website of this company. Aydyn Rakhimbayev is the chairman of the board of directors. In 2020 in Uzbekistan, Bi-Group in partnership with the developer Murad Buildings created the company NAZAROV RAKHIMBAEV GROUP JV LLC (NRG).

So, Bi-Group hires a lawyer in favor of NRG with clear instructions :

“The lawyer’s task is to clean social networks from false information as much as possible, otherwise sue them, and also sue the activists for causing damage to the company’s status and delaying construction and installation works, which resulted in expenses. In the end we want to teach the residents a lesson, so that they would not interfere with construction and installation works and get rid of false bloggers.

We hope to work according to this scheme in other objects in case of similar situations», the order stated”, read the order.

As Alisher Nasimov correctly noted, this process was an experiment: whether or not it will succeed in “strangling citizens”.

The developer did not appeal. It can be considered that this time the rights of citizens were protected.

By Farida Sharifullina