What does the 48-hour constitutional guarantee entail in cases of administrative detention?

The Constitutional Court of the Republic of Uzbekistan has adopted a decision on an important constitutional issue concerning the right to liberty and security of the person. The decision is particularly significant as a practical manifestation of the Constitution’s supremacy in safeguarding this fundamental right.

Doctor of Law and Professor Foziljon Otakhonov, Deputy Chairperson of the Scientific Advisory Council under the Constitutional Court of the Republic of Uzbekistan, commented on the decision:

– The Constitutional Court found unconstitutional the provisions of Part Two of Article 288 of the Code of the Republic of Uzbekistan on Administrative Responsibility, which provided that, where necessary to establish the identity of an offender and the circumstances of an administrative offense, a person could be detained for up to three days, with written notification to the prosecutor within twenty-four hours of the moment of detention, and, where the offender did not possess an identity document, for up to ten days with the sanction of the prosecutor.

Of particular importance is the decision’s legal clarity on the application, in the field of administrative offenses, of the guarantee established by Article 27 of the Constitution, which provides that a person may not be detained for more than forty-eight hours without a court decision.

In this regard, the Constitutional Court’s decision further clarified the legal basis for reviewing administrative and legal relations involving restrictions on human liberty, in accordance with constitutional requirements.

First of all, it is necessary to correctly understand the meaning of the 48-hour rule established by the Constitution. It does not grant a state authority the right to detain a person for 48 hours in every case. On the contrary, it sets the maximum constitutional limit on restricting a person’s liberty without a court decision.

Therefore, if the need to detain a person ceases after two, three, or ten hours, that person may not be detained beyond 48 hours. Any restriction of liberty must, in each case, satisfy the requirements of a legitimate aim, necessity, and proportionality.

In this sense, 48 hours is not a privilege granted to a state authority but a constitutional boundary that protects human liberty. This boundary has become particularly evident in the Constitutional Court’s decision.

In practice, some may view the 48-hour requirement under Article 27 of the Constitution as applying primarily to detention during criminal proceedings. However, from a human rights perspective, whether a person is detained on suspicion of having committed a crime or detained in connection with an administrative offense, in both cases the person is deprived, for a certain period of time, of the ability to move freely and leave at will.

In other words, the legal procedures may differ, but the fundamental constitutional right being restricted is the same – the human right to liberty.

Therefore, when determining the scope of constitutional guarantees, it is important to consider not only the type of offense but also whether the person’s liberty has actually been restricted.

According to Article 15 of the Constitution, the Constitution has supreme legal force throughout the country, applies directly, and forms the basis of a unified legal space. Consequently, legislation must comply with the Constitution, and its application must be based on constitutional norms and principles.

An important aspect of this decision is that administrative legal provisions restricting human liberty must likewise remain within the framework of the highest legal guarantees established by the Constitution.

Another important aspect is the legal status of a prosecutor’s sanction. The prosecution authorities play an important role in ensuring legality. However, prosecutorial supervision and judicial review are distinct legal institutions.

When the issue involves depriving a person of liberty for more than 48 hours, the Constitution requires a court decision.

The principal importance of judicial review lies in its independent and impartial legal assessment. A court can determine whether there are lawful grounds for detention, whether the measure is genuinely necessary, and whether it is proportionate to the person’s rights.

Therefore, regardless of the importance of a prosecutor’s sanction in ensuring legality, it cannot replace the court decision required by the Constitution.

Another practical aspect is particularly important. The 48 hours should be calculated not from the moment a report concerning the person is prepared or from the moment the person is brought to the premises of an internal affairs body or another authorized authority, but from the moment the person is actually deprived of the ability to move freely. Otherwise, the start of the constitutional period could be artificially delayed by detaining a person in practice and later formalizing the relevant procedural documents.

Naturally, the absence of an identity document may make it difficult to establish a person’s identity. Identification is particularly important in practice for ensuring the security of the State Border.

However, administrative or organizational difficulties, in themselves, cannot automatically constitute grounds for a prolonged restriction of a person’s constitutional right.

Modern information systems, biometric data, interagency information exchange, and other means make it possible to accelerate the process of establishing identity.

Therefore, organizational problems in public administration should be addressed not by prolonging restrictions on human liberty, but by improving the efficiency of state authorities.

The Constitutional Court’s finding that the above-mentioned provisions of Part Two of Article 288 of the Code of Administrative Responsibility are unconstitutional also places certain tasks before the legislature. First and foremost, legislation governing administrative detention should be systematically brought into conformity with the guarantees established by Article 27 of the Constitution in its new edition.

In a state governed by the rule of law, any exercise of state authority impacting human rights must be confined to the legal limits set by the Constitution. The Constitutional Court’s ruling reaffirmed the significance of this principle. Ultimately, the true measure of a rule-of-law state is not in how long it can detain individuals, but in its ability to safeguard their freedom effectively.

Norgul Abduraimova, UzA