Alternative thematic report on housing rights to the 71st session of the UN Committee on Economic, Social and Cultural Rights
13.03.2022By Farida Shariffullina
A group of the Uzbek civil activists prepared the alternative thematic report on Uzbekistan’s implementation and guarantee of the right to adequate housing in compliance with its international obligations by the CESCR, and submitted for consideration during the 71st session of the CESCR Committee in February-March of 2022, where Uzbekistan undergoes its 6th country report.
This report was developed with support of the UN OHCHR aiming at facilitating the dialogue between the CESCR Committee and the Republic of Uzbekistan delegation to brief the CESCR Committee on the implementation of the CESCR Committee’s Final Recommendations to improve Uzbekistan’s compliance with its obligations under the CESCR.
- FORCED EVICTIONS IN UZBEKISTAN – VIOLATIONS OF HUMAN RIGHTS TO NON-DISCRIMINATION AND LEGAL PROTECTION
А. Uzbekistan violates property rights (Art 11 of CESCR)
Forced evictions contribute to already existing inequality, discrimination, segregation, social conflicts and tensions, and enlarges the poverty gap among the most socially and economically vulnerable and marginalized groups, especially women, children, minorities and PwDs.
Deputy Justice Minister Akbar Tashkulov informed about violations in 2016-2020:
- 846 cases of demolition without warning;
- 1,388 cases with non-compliance with the warning period;
- 1,244 cases without prior assessment;
- 430 demolitions without compensation.
In 2016-2019, 6,479 private properties were demolished for state and public needs, and the amount of unpaid compensation reaches 335.6bln soums ($31.6mln). In 2020, 263 properties were demolished for a total compensation of 99.4bln soums ($9.4mln).
In 2020-2021, only in Tashkent 30 owners have not been paid for damages caused in connection with the state seizure.
Non-stop construction heavily supported by the state is an indication of ongoing development is a gross violation of Uzbek people`s rights to cultural heritage (Art.15 of CESCR) and healthy environment (art.11 of CESCR). Demolition of monuments in the historical part of Tashkent erases inevitable evidence of the original way of life, habitat and culture of the Uzbek people.
On August 2, 2007, Abdukakhar Tukhtayev, the former khokim (mayor) of Tashkent city excluded about 300 various sites from the list of cultural heritage. A number of buildings and constructions built in the 19th and early 20th centuries, parks, squares and even the Tashkent Botanical Garden lost their protective status. Up to now, some of the buildings are already demolished, many squares and parks have been shrunk, lakes have been drained, and the vacated territory is being developed by commercial facilities.
The rapid construction in recent years in Uzbekistan has created a lot of sand and dust rising into the air with any power of the wind. In Tashkent, the Air Quality Index (AQI) is much lower than in the capitals of neighboring countries. In 2021, only a few days were “with good air quality,” while the rest with poor or even dangerous AQI. Uzbek Ministry of Health informed about increased number of people complaining of breathing difficulties to the ambulance during the sand hazard at the end of 2021.
Infill development: municipalities and developers find spacious yards between the apartment buildings and try to squeeze in a multi-story building. It is very convenient and beneficial: all infrastructures already exist, and there is no need to resettle anyone. However, the residents of such neighborhoods protest, since the construction itself and the finished building will violate their right to adequate housing, which includes the right to a healthy ecological environment. In addition, infill developments violate the relevant provisions of current Uzbek legislation.
No demolition statistics exist at the state level due to following assumptions:
- Khokims’ decisions regarding land allocation for construction aren’t posted on municipality So, no transparent and accountable tracking mechanisms;
- Khokims’ decisions on land allocation do not include details on buildings to be demolished, and consists from only minimum information such as approximate land location and size. The developers and cadaster services identify buildings and flats to be demolished, as well as families that lose their housing, after the decisions are made. Any kind of information, including justification of decisions are absent disabling access to information;
- No state institutions are interested in publishing demolition data infringing right to information;
- Unfair demolition become publicly available case only after active fights for RAH of victims who publish information online and involve journalists.
Evictions take place following the city municipality decision on land allocation to entrepreneurs to carry out various commercial projects, mainly construction of multi-store apartments, hotels, shopping, entertainment and business centers. These decisions are made without consideration of the permanent residents in that land or existence of enterprises or other commercial facilities.
Khokims make these decisions without prior consultation or consent of residents/owners of private facilities. People are presented with a fate to leave their homes where they were born; or the house that they have chosen according to their preferences (near to work, school, relatives, ecological zones, etc.).
Developers pursue their profitmaking activities and are not interested in paying an adequate compensation for the house or moral damage. Developers for not agreeing terms constantly sue the owners of residential or non-residential facilities. Despite the legal prohibition of forced eviction, judges rephrase some legal provisions and adjudicate de facto forced eviction. Judges refer to the law regulating demolition for public and state needs, while most demolitions are only for profit making, mainly in real-estate sector. According to the law of Uzbekistan, the exhaustive list of state and public needs does not cover such demolitions.
Furthermore, judges use the clauses on the eviction from the municipal houses to justify the decision to evict people from their own private houses. Often, municipalities are co-claimants with developers on forced eviction cases against owners, including women and children that can be interpreted as if the state de facto in favor of the commercial firms against citizens, particularly, vulnerable population, and violate the principle of equality of arms. Usually, owners of demolished houses are not financially capable of paying a defense-lawyer; and Uzbek law does not entitle free state-guaranteed legal aid to vulnerable population in civil cases. In spite of urgency to adopt the Law on Free Legal Aid that includes mentioned provision, Uzbekistan has not adopted yet.
В. The following Uzbek legislation regulating ownership rights are violated during the housing demolition:
Article 53 of Uzbekistan Constitution: “Private property, along with other forms of ownership, shall be inviolable and protected by the State. The owner shall be deprived of his property only in case and manner stipulated in the law.
The Civil Code : “Ownership shall be inviolable and protected by law. The property inviolability shall imply any refraining from violation of property rights by any actor opposing the owner. The seizure of the owner’s property, as well as the restriction of his or her rights, shall be permitted only in the cases stipulated by legislation.”
Article 2 of the Law of Uzbekistan on “Protection of Private Property and Guarantees of Owners’ Rights”: “Private property shall be inviolable and protected by the state. The owner shall be deprived of his property only in case and manner stipulated in the law.”
The Law on “Property in Uzbekistan” begins with the Preamble guaranteeing, “Property in Uzbekistan shall be inviolable. Everyone shall have the right to property. Uzbekistan permits any form of property that contributes to the efficient functioning of the economy and the well-being of the people. The inviolability and equal conditions for the development of all forms of ownership shall be guaranteed by law. Uzbekistan shall provide the owner with all the necessary conditions to ensure the preservation and increase of his property.” Based on Article 1 of this Law, “Ownership rights in Uzbekistan shall be recognized and protected by law. The owner has the right to perform any act against his property that donэt contradict the law. He may use the property for any economic or other activity not prohibited by law. Uzbekistan guarantees equal rights and legal protection of all forms of property.”
All issues relating to compensation of the owner for the losses incurred shall also be resolved. The State shall seize the owner’s property only as recovery of the obligations of the owner in cases and under the procedure provided for by Uzbekistan’s law, as well as by way of nationalization, requisition and confiscation. In the event of natural disasters, accidents, epidemics, epizootics or other emergencies, property in the interests of society may, by decision of the public authorities, be confiscated from the owner with payment of the value of the property (requisition) in accordance with the procedure and conditions established by the law of Uzbekistan. In cases stipulated by the legislative acts of Uzbekistan, property may be withdrawn from the owner by court decision. The property may be seized from the owner by court decision in cases stipulated in the legislation of Uzbekistan
If, as a result of the act issuance by the public administration or local government authority that doesn’t conform with the law, when the rights of the owner or other persons to own, use and dispose of the property belonging to them are violated, this act shall be declared null and void by court at the request of the owner or the person whose rights have been violated. Losses incurred by citizens, organizations or other persons as a result of the issuance of the said acts shall be compensated in full by means available to the relevant authority or administration.
The State bodies shall be liable for any damage caused by their unlawful interventions violating powers to possess, exercise, or dispose of their own property by the owner or persons referred to in paragraph 1 of this Article, as stipulated in Article 35 of this Law. However, despite of being the final body to settle disputes, issues with independence of judiciary limits the protection mechanisms for victims.
Article 206 of the Housing Code : “ Termination of ownership in connection with the decision of the State authority not directly aimed at seizing the property from the owner, including the decision to seize the land where the owner’s house or other structures, buildings or planting are located, shall be permitted only in cases and in accordance with the procedure established by law, may the owner of the property be granted the right of ownership of equal value and other losses incurred or be compensated in full for the loss caused by the ownership termination. The market value of the house, other buildings, structures or plantings located on the land to be seized, as well as the right to land, shall be determined by valuation organizations in accordance with the established procedure. However, the market value of the property seized and the rights to the land upon termination of private ownership shall be determined by the valuation organization immediately, prior to the seizure of the property or when the news of the impending seizure affected the market value of the property, and the right to the land. It shall not be permitted to demolish a house, other structures or plantings on the land to be seized without prior and full compensation of losses at market value. If the owner disagrees with the decision terminating his ownership right, it shall not be implemented until the court has resolved the dispute. When considering the dispute, all issues with regard to compensating the owner for any losses incurred shall also be resolved. However, in practice, these HC provisions aren’t respected. Forced evictions most often involve lower-middle-income areas targeted for demolition. They don’t have enough financial means to hire lawyers to defend their property rights, they don’t have ‘friends in power’ who could protect their interests against arbitrary government and local officials.
Municipalities and developers are increasingly replacing the principle of equivalent value with the principle of equivalent significance when providing replacement for the demolished housing: they offer a dwelling of equal area, regardless of the number of family members living with the owner.”
In many cases, requirements of Articles 37 and 38 of the Urban Planning Code are not followed during the constructions, and development projects are not based on General Plan (Masterplan). Any construction shall not commence if there is no approved General plan. Article 34 of the UPC clearly “prohibits to design and build any projects within settlements without General plan or other required urban planning documentation”.
Para 3 of the Regulations on the “Procedure for Compensation of Damages to Citizens and Legal Entities due to Seizure of Land for State or Public Needs” states : “Decisions on the seizure of land and the demolition of residential, industrial and other buildings, structures and plantings shall be taken in accordance with the General plans, as well as detailed planning and development designs of cities’ and towns’ residential areas, as well as microdistricts. The unwarranted demolition of residential, industrial and other buildings, structures and plantings on the land to be seized shall not be permitted”.
C. New regulation legitimizes forced evictions
A new RCM “On Additional Measures to Guarantee Property Rights of Individuals and Legal Entities and to Improve the Procedure for Seizure of Land Plots and Compensation in Connection with Seizure” No.911 from November 16, 2019 and amended on September 21, 2021 became effective in Uzbekistan on January 1, 2020. This RCM cancels the RCM No. 97 of 2006 and introduces additional reasons for withdrawal of land plots and constructions located on them (“investment projects aimed at development and improvement of the architectural appearance of the area”).
The new RCM introduces a new procedure for seizure of land plots, demolition of constructions and compensation to owners. Now, initiators of land seizure, after all approvals with municipalities, councils of the local representatives and other state structures, must hold preliminary discussions of their projects with property owners and obtain their prior notarized consent. The new RCM also obliges the publication of municipality’s decisions on seizure of land plots on its websites and in the media.
At the same time, the RCM No.911 worsened the situation of people subjected to demolition through abolition the social norm (16 m2 per each registered person, 23 m2 per PwDs) that was considered during compensation calculation.
Moreover, RCM No.911 introduces the possibility of compulsory seizure through court proceeding. According to para 47, “In the presence of written consent of at least 75% of the owners, but lack of consent of the remaining part of the owners, the initiator has the right to apply to the court with a claim for forced withdrawal of real estate at a price determined in the prescribed manner. The amount, terms and type of compensation to owners who have not given the appropriate consent shall be determined by a court“. This paragraph of the RCM No.911 directly contradicts international treaties ratified by Uzbekistan and reflected in its Constitution and other legislative acts mentioned above (items 10-15).
Despite of constitutional guarantees, laws are still misinterpreted and misused. On July 2, 2021, the Constitutional Court of RUz issued a decision in which it recognized that “the concept of “appeal to court with a claim on compulsory redemption”, used in para47 of the RCM No.911, is not defined in the legislation of RUz. “The initiator is entitled to apply to the court not with such a claim, but with a possible request to determine in court the amount, types and term of compensation to the owner.” Nevertheless, Constitutional Court of RUz considered that “when the consent of the owner to seizure of his property is not achieved, the amount, types and terms of compensation are determined based on Article 197 of the СС, which is not contradicting the Article 53 of the Constitution”.
But, according to the different provisions of the CC, the owner’s property shall be seized only as recovery of the obligations of the owner in cases and under the procedure provided for by law, as well as by way of nationalization, requisition and confiscation. If a person owns property that cannot be owned by him by law, the ownership of such property shall be extinguished by the courts, and the value of the property seized shall be reimbursed.
CASES for period of 2018-2021
This list is not exhaustive
Cases with a tragic outcome
- M .M. and her family members, Tashkent (evictor LLC BB-STROY). The Courts of first and second instances upheld the forced eviction to the premises selected by the developer. Despite the fact that her case was pending before the Supreme Court, the bailiffs came to evict her in a very rude manner: they broke down the doors and windows, cut the radiators and began pulling things out to take them to an apartment chosen by the developer. No inventory was made. The case happened in March 2021 during cold weather. A week after the eviction, M.M.’s chronic illnesses sharply worsened her health condition and she died in the emergency clinic.
- D. R., Samarkand (evictor LLC “Silk Voyage”). The evictor planned to demolish 4 multi-apartment residential blocks (59 flats) for commercial purposes. The destruction of the common property was initiated when people were still inhabiting the building. Some resisting homeowners were harassed and repressed by administrative and even criminal sanctions allegedly for “insulting”. The Supreme Court upheld the eviction R. sisters and their four underage children. During the evictions, D.R. resisted the process by throwing a burning towel and starting to spill the fuel around and on herself. She was arrested and remained in detention for five months. The court sentenced her for 2 years of travel restrictions.
- A 33-year old man in Taylak village burned himself infront of the officials who came for demolition of his house. The man later died in hospital. His mother who tried to stop the fire was hospitalised with 40% of body burns.
- A., Fergana, Gidroliz, died from stress in the process connected to eviction.
- Andijan. The bailiffs came to confiscate the house that was under pledge. The 31-year old owner burnt himself during this visit and later died in hospital.
- Karakalpakstan. In September 2017, a 29-year old teacher attempt to burn himself and jumped off the roof when the bailffs came to demolish the premises with the bulldozer. He was hospitalized.
- Namangan. A 35-year old mother of two burn herself in front of the bailiffs who came to evict the family. She died in hospital. The property being confiscated was purchased according to law but not registered (allegedly due to some technical errors).
- Navoi. A women came to the municipality and threatened to burn herself because the day earlier her house was demolished by the court order. The house was constructed without proper documentation.
- Qarshi. The woman pours petrol over and attempts to burn herself infront of the prosecutor’s office when the officials refused to take her appeal regarding the demolition of her home. Her father seized her actions and was hospitalised.
Massive evictions by the State bodies in favour of commercial needs
- Chimgan village, near Tashkent. In the beginning of 2020, the villagers were notified about eviction. The bulldozers demolished fences and barriers of peoples premises with threats to take away their homes if they will resist. Owners do possess the documentation confirming their property rights. In June-July the prosecutor’s office filed suits against 24 households to invalidate their ownership documentation claiming that 20-30 years ago they were based on a fraud signature of the authority. However, this claim is not confirmed and was not investigated.
- 79 households were torn down on 29-30 September night in Sebzor area of Almazar district, Tashkent with participation of the Prime Minister Abdulla Aripov, city major, police and other officials (2018). The land had to be freed of people’s houses and given for construction of embassies of India and Tajikistan. The residents claim that no official notifications were made. Residents had few Saturday evening hours to move. The bulldozers started the demolitions with people and their stuff still in the Only in the beginning of 2020 people started to move to a new permanent location – a 12 story multi-appartment building. Worth mentioning, that no any construction or whatsoever had been conducted up until today at the location where people were evicted in one night.
- Multi-appartment house No.78 on Anhor waterfront. The Tashkent municipality started to demolish the flats with families still inhabiting the property. Some people left their houses with “guarantee letters” to provide a property in the future. No court hearing were held. This place is also empty, nothing constructed.
- Fergana. On 2 January 2019 the residents of Gidroliz settlement comprising of ten buildings with 120 privately and legally owned flats were announced that their premises will be demolished (allegedly for a foreign investment to construct a hotel). On 8 January, the officials came and initiated a gradual and forced eviction of people. The destructions were carried out flat by flat. No monetary compensation, no consultations were carried out and no court decisions held. Residents could not get a hold of a Mayor’s decision to appeal for its invalidation in court. The police and national security officers carried out visits in the late evenings and demanded eviction putting great psychological pressure. The deputy mayor insulted and yelled at people. People were evicted to a particular location selected by the municipality from the city center to the suburb with no infrastructure. In January 2020 the information about constructing a hotel on the evicted area was denied. The location was still empty and expecting a new investor to build residential quarters.
- Khoresm. On July 26, 2019, thousands of protestors, whose houses were demolished, blocked the major road to demand a place to live. The homes of 400 families were destroyed and they were living in temporary tents for months. The government payed out only 8-50% from the amount of the promised compensation prior to protests. The Prime Minister flew to the location and the government promised to make a full payment in two weeks.
- Navoi. The court evicted six families from six homes following the appeal of the municipality and LLC The Alfa Grand Buildings. The second instance court upheld the decision.
- Surkhandarya. On 14 February 2020, people confronted the police to resist the eviction and demolition of their property allegedly build illegally in the field. The video shows that the police uses force against people, even the elderly.
Evictions by the Court
- Samarkand: T.’s family with four underage children. The evictor is municipality who decided to enlarge the road. The municipality started to make payments and demolish houses with the homeowners it had a deal with. The demolitions were suspended leaving V.T. without a deal and with the property damaged by the municipality workers. Subsequenrly, the municipality files a suit to forcebly evict the family with a little compensation. The court rendered a decission in favour of the municipality. The parties reached an agreement before the case went to the second instance, because V.T. was “too tired to continue.”
- Tashkent: M., a 85-year old woman. When evictor LLC BB-STROY sued to evict her, she won in the first and second instances of the court. But, the Supreme court annuled decisions of the first and second isntance and stated to forcebly evict her, by providing a compensation it deems appropriate. In the owner’s absence the bailiffs intruded the property and evicted Z.M.’s belongings. No notification on eviction was received by the homeowner.
- Tashkent: Kh. (evictor LLC BB-STROY)- ongoing. As for today two court instances refused the evictor’s claim to forcibly evict the resident. The Supreme Court has sent the case to again to the first instance court to establish the value of the property. Last autumn, the Civil Court of the city of Tashkent ordered to deplace M.Kh. to the flat choosen by the evictor. Currently, the case is viewed by the Supreme Court.
- Tashkent: M. and his family (evictor LLC Golden House). There were only two court sessions following wich a judge rendered a decission to evict the family. The first day D.M. did not deliver his position because he was introduced to the claim right at the session and did not have a legal defence. He could not participate at the second (final) session because his entire family and he had Covid-19. D.M. presented the medical certificates to the court secretary. The proceedings were held nevertheless without the family being evicted. This case is reviewed by the second instance where the Appeals Board did not grant D.M.’s application to be represented by his proxy.
- Tashkent: A. and her family (evictor LLC Training Project”). September 2020, when her case was pending before the Supreme Court, the bailiffs came to evict O.A.’s family in great concentration of the force services, they broke down the doors and began pulling things out. Only protests of the neighbours and intervention of the district mayor could stop eviction. Due to intervetion of the Ombudswoman and the MJ, eviction was postponed and the case was sent back to the court of first instance by the Supreme Court. Nonetheless, this year, the courts of two instances upheld eviction of O.A.’s family to the house choosen by developers. If this is upheld, the family will have to move from the center of the capital to a more remote area, to a smaller house with some additional monitary compensation. Currenly, a homeowner tries to appeal the case in the Supreme Court again. The proceedings are going on for 3 years.
- Nukus. By the decision of the Nukus inter-district court of June 17, 2016, the family of A. was forcibly evicted because his private house should be demolished, without providing other housing. The Supreme Court of the RK on August 02, 2016 rejected the appeal of J.A. As a result, the family of J.A.’s family has been living in unbearable inhumane conditions for six years. All this time, J.A. has appealed to all kinds of government agencies, trying to protect his right to private property. But invariably, he received answers from officials that forced eviction of his family was legal.
Disrespect of the PwDs` rights to housing
According to the HC, PWDs have right to at least 23 m2 of housing, and according to Art.22 of the Uzbek Law “On the Rights of PwDs,” they have the right to receive social housing.
- G.N., PWD, lives in apartment of 18 m2, together with her elderly mother and younger brother. Therefore, since 2017, G.N. has repeatedly appealed to the city authorities to provide her with social housing. However, all her attempts to obtain social housing in the manner prescribed by law did not bring the expected result.
- Nukus. I.G., PWD, lives with her minor daughter in her cousin’s apartment. For a long time she has also repeatedly appealed to the authorities to provide her with a room in the dormitory for people in need. No results.
Violation of the housing rights of the Sardoba victims (1.05.2020).
On May 1, 2020, Sardoba Reservoir Dam burst, causing the Sirdaryo River to flood downstream communities and villages. Widespread flooding damaged and destroyed homes, and disrupted the livelihoods of 60,450 people in 22 communities within the Sardoba, Akaltyn, and Mirzaabad districts. 2,570 houses were destroyed.
The procedure for distributing housing to residents in three damaged districts has been violated, resulting in 147 houses being unreasonably allocated to inappropriate citizens. Meanwhile, 99 citizens who were legally entitled to housing did not receive housing from the state.
There were some cases where the compensation was disproportionate to the damage.
- Governor of Sardoba province told the residents of Dustlik mahalla that he would demolish their surviving houses in order to build a factory on this territory, relocating people who have farms (cattle and vegetable gardens) to apartment buildings.
- M.O., a mother of five children, lost her house with a total area of 1400 sq.m., and received a three-room flat of 45 sq.m.
- Sh. Kh. received a flat of 45 sq. m. instead of her house with 132 sq. m. registered in the State Cadaster.
- B.N. received only money for repairs instead of 113 sq.m. of living space registered with the State Cadaster.
17 similar cases are publicly known, where affected citizens were given with houses either with inadequate number of residential meters or not at all.
RECOMMENDATIONS:
- Oblige the state to comply with international standards and obligations to protect the rights of homeowners and their families and exclude the possibility of land acquisition and demolition of premises strictly by law. Cancel the para 47 of the RCM No 911 to avoid misinterpretation and misuse of the law and regulations.
- Recommend to the Oliy Majlis of the Republic of Uzbekistan (Parliament) to amend Article 27 (part 1) of the HC to read as follows: «In the event of demolition of residential houses (flats) owned by citizens … owners at their choice and by agreement between the parties shall be provided with equivalent suitable residential premises in ownership with the area that at least complies with the social norms for the housing area, considering the number of family members, as well as tenants permanently residing in these houses (flats)».
- Recommend to the Oliy Majlis of the Republic of Uzbekistan (Parliament) to adopt the Law on Free Legal Aid, ensuring free legal aid (as well as defense-lawyer appointed by the state) to vulnerable groups, including single women with children, low-income families, PwDs in the civil case, including in cases on demolitions, seizure of the land and other related disputes.
- Oblige the state to exclude the procedure when the demolition of residential premises in connection with the seizure of land is carried out without the consent of the owner of the premises.
- Oblige the state to exclude the procedure for demolishing preschool and school educational institutions for commercial purposes, ensuring the improvement of children’s access to educational institutions by increasing budgetary allocations for the construction of new kindergartens and schools.
- Oblige local authorities to post demolition decisions with reference to the General Plan on their website.
- Oblige statistical agencies to publish data on demolitions in connection with state seizures of land, but not limited to it.
- Ensure the independence of the judiciary through the election of judges by the population and the possibility of their recall in the event of court decisions that violate the rights of citizens to a fair trial in accordance with international standards.
- Oblige state authorities to compensate victims for material damage caused by the Sardoba dam burst in 2020.
Authors of the report:
Tashkent SNOS Activist Group, Ms. Farida Sharifullina
Central Asia Network on the Right to Adequate Housing
Democracy and Human Rights Institute, Ms. Sayora Khodzhaeva
Ms. Diyora Rafieva, Public Law & Security lawyer
NGO Akbaskur, M. Murat Ubbiniyazov
Ms. Anastasia Gladilova, civil activist
Ms. Dilfuza Kurolova, Human Rights lawyer
The whole text of the report is avialable here: Uzb_coalition_report_to_CESCR_on_the_Right_to_Adequate_Housing