Professor of the Department of Criminal Law of the Academy of the Ministry of Internal Affairs of the Republic of Uzbekistan, Doctor of Law
One of the greatest advantages of the Criminal Code of the New Uzbekistan is the institution of fundamental underlying principles (Articles 3-10). Immeasurably greater reflection was found, both in General and in Special parts, special sectoral principles of differentiation of criminal responsibility and individualization of punishment, dozens of acts that were recognized as deprived of public danger were decriminalized. In the aspect of merits, it is impossible not to recognize as a positive fact a broader interpretation of the norms on the retroactive force of the criminal law (Article 13), innocent infliction of harm (Article 24), circumstances excluding the criminality of the act (Article 35), exemption from criminal liability (Chapter XII) and punishment (Chapter XIII), which concern the citizens of our country and, of course, what the theorists of criminal law have been striving for decades is the reflection in the content of the Criminal Code of ideas, provisions, reasonable proposals de lege ferenda of the criminal law doctrine.
The undoubted advantage of the Criminal Code is that it quite successfully, fully and clearly formulated the main legal institutions: classification (categorization) of crimes (art. 15), grounds of criminal responsibility (art. 16) guilt (art. 20-23), complicity in a crime (art. 27-30), multiplicity of crimes (art. 32-34), circumstances precluding criminality of the act (Articles 35-41), criminal liability of minors (Section VI, Chapter XV), etc. For the first time, the Criminal Code has been supplemented with a new section “Legal meaning of terms”, which has great theoretical and practical significance. The presence of such a section in the Criminal Code of the Republic of Uzbekistan has been positively assessed by international experts and the adoption of such an innovation by criminal legislations of other countries has been recommended.
As a result of the systematic and phased implementation of the liberalization of criminal punishment, imprisonment was excluded from the sanctions of 26 elements of crimes provided for in the Special Part of the Criminal Code. Amendments and additions have been made to the sanctions of 146 articles of the current Criminal Code aimed at liberalizing criminal penalties, which provide for new types of punishments – mandatory community service and restriction of freedom, acting as an alternative punishment to imprisonment. Excluded from the Criminal Code are such types of punishments as confiscation of property, arrest, deprivation of a certain right in relation to persons engaged in entrepreneurial activity, except in cases that have caused the death of a person or other grave consequences, the death penalty. The abolition of the death penalty in the New Uzbekistan, according to authoritative foreign scientists and experts, has become the basis for the formation in our country of the most liberal system of criminal penalties in the world community. The system of crime classifications has been changed enormously. The number of crimes that do not pose a great public danger has increased from 86 to 196 crimes. About 70 percent of crimes from the category of grave and especially grave have been transferred to the category of crimes that do not pose a great public danger and are less serious.
In general, positively assessing the legal reforms carried out in the country, President of the Republic of Uzbekistan Shavkat Mirziyoyev in the Resolution “On measures to radically improve the system of criminal and criminal procedural legislation of the Republic of Uzbekistan” stressed: “The creation of an effective system of criminal and criminal procedural legislation is one of the priorities of the state to ensure law and order, reliable protection of rights and human freedoms, the interests of society and the state, peace and security”. Deeply revealing the content of the principles of justice and the rule of law in paragraph 14 of Annex No. 1 to the Decree of the President of the Republic of Uzbekistan “Strategy for the development of New Uzbekistan for 2022-2026” as of January 28, 2022, specifically points to “consistent continuation of the policy of improving criminal, criminal procedure and penal enforcement legislation, widespread implementation of the principle of humanity in the system of criminal penalties and their execution”.
The given conceptual instruction of the President of the Republic of Uzbekistan Shavkat Mirziyoyev is conditioned by objective socio-political and economic conditions, naturally follows from the fundamental principles of the development of the new statehood and is directly aimed at the gradual reduction of punitive elements and their transformation into educational ones; wider implementation of the principle of economy of repression, which should manifest itself in a steady narrowing of the range of criminal acts and mitigation of criminal liability on the basis of based on the principles of legality, inevitability and justice; the humanization of criminal legislation, combined with the inevitability of responsibility and the use of harsh measures for acts that constitute external and internal threats to security and law and order.
The first direction is differentiation and individualization of responsibility. This section draws attention to the following aspects. Firstly, the sanctions of the articles of the Special Part of the Criminal Code are brought into line with the category of crimes provided for in its dispositions. This issue causes serious concern among the population, since in the current criminal legislation, the Criminal Code of the Republic of Uzbekistan of 1994, the proportionality of punishment to the severity of the crime is not resolved at the proper level. The President of the Republic of Uzbekistan Shavkat Mirziyoyev specifically draws attention to this problem in the Resolution “On measures to radically improve the system of criminal and criminal procedure legislation”, which indicates as one of the shortcomings of the current criminal legislation “… the disproportionality of sanctions for the commission of certain types of crimes to the nature and public danger of acts”. Therefore, in the draft of the new version of the Criminal Code prepared by the commission under the Prosecutor General’s Office of the Republic of Uzbekistan (hereinafter – the draft of the new version of the Criminal Code), special attention is paid to the scientifically based theory of the sanctions system.
First of all, it is necessary to narrow down in every possible way the range of acts and persons for which and to whom, according to the law, it is possible to apply deprivation of liberty by significantly expanding the use of other measures of criminal legal influence. That is why the President of the country Shavkat Mirziyoyev in paragraph 84 of section 4.2 of the Decree of the President of the Republic of Uzbekistan No. DP-158 “On the Strategy “Uzbekistan – 2030” as of 11.09.2023. specifically indicates a reduction from 30 percent to 20 percent of the practice of sentencing in the form of imprisonment.” Fourth, the institution of exemption from criminal liability in connection with the reconciliation of the parties is being developed and the mechanism of its application is being simplified. The presence of the institution of reconciliation of the parties in criminal legislation has become the personification of such centuries-old traditions of the people as mercy and the ability to forgive. Since the introduction of this institution into criminal law, the number of articles under which the use of the institute of reconciliation of the parties is allowed has increased from 26 (32 elements of crimes) to 46 (61 elements of crimes).
Note that Article 661 of the Criminal Code provides a list of the elements of crimes in the commission of which the use of the institution of reconciliation of the parties is allowed. The analysis of these elements of crimes allows us to state that they all belong to the category of crimes that do not pose a great public danger. In accordance with part 1 of article 15 of the Criminal Code, the concept of the latter covers intentional crimes for which punishment is provided in the form of imprisonment for a term not exceeding three years, as well as crimes committed by negligence, for which punishment is provided in the form of imprisonment not exceeding five years. The number of such elements of crimes in the current criminal legislation is much greater than those listed in Article 661, and today accounts for about 46% of the total number of elements of crimes provided for in the Criminal Code. Society does not stand still, but is constantly developing, the legal awareness and legal culture of citizens are increasing, which determines the implementation of further liberalization of criminal penalties. In this aspect, Article 661 of the Criminal Code may specify not only categories of crimes that do not pose a great public danger, but also less serious ones.
Based on the above, we consider it expedient to state Part 1 of Article 661 of the Criminal Code of the New Uzbekistan in the following wording: “A person who has committed a crime that does not pose a great public danger or is less serious can be released from criminal liability if he has admitted his guilt, reconciled with the victim and made amends for the damage caused”. In this regard, a reasonable question arises: what positive results can this innovation lead to?
Fifthly, the number and scope of application of criminal law incentive norms is increasing. The implementation of criminal policy in the field of liberalization of criminal penalties, of course, involves the development of the institution of incentive norms. The choice of the path of liberalization of criminal policy by our state led to the introduction of new special criminal law incentive norms in a number of articles of the Special Part of the Criminal Code. So, in practice, the introduction of an incentive rule in the Criminal Code on the non-use of punishment in the form of restriction of liberty and imprisonment in cases of compensation for material damage caused (Part 4 of Articles 167, 168, Part 5 of Article 1852 of the Criminal Code) is positively assessed, in three times the amount (Part 4 of Articles 173, 175, 198 of the Criminal Code) or full exemption from criminal liability (Part 3 of Articles 180, 181, 1811, Part 6 of Article 1852 of the Criminal Code), provided that a person has committed a crime for the first time and he has compensated for the material damage caused within thirty days from the date of detection of the crime.
The second direction is decriminalization. Firstly, the issue of exclusion from the number of criminally punishable crimes, the condition of responsibility of which is administrative prejudice, is being considered. Secondly, a full analysis of the norms with a blank disposition is carried out with an audit of all legislative acts on the basis of which these norms are applied, in order to narrow the range of violations that may entail criminal liability, since the existing inconsistencies between criminal legislation and other branches of legislation necessarily give rise to an expanded interpretation and application of the law by analogy. As a result, a gross violation of legitimate interests and human rights is allowed. So, according to A.I. Tashpulatov, who conducted fundamental research on the topic: “Criminal Law Principles: Theory and Practice”, over the past four and a half years, acquittals have been handed down against 3,226 citizens, 16,545 people have been released from criminal liability from the courtroom and 31111 unsubstantiated charges have been dropped. The above also determines the addition of Article 4 of the Criminal Code with part three of the following content: “the application of criminal law by analogy is not allowed”.
The third direction is criminalization. Article 26 of the UN Convention against Corruption of October 31, 2003 obliges the States parties to this Convention to recognize a legal entity as a subject of criminal liability. In this regard, the Decree of the President of the Republic of Uzbekistan No. PP-3723 “On measures to radically improve the system of criminal and criminal procedure legislation” as of May 14, 2018 indicates the establishment of criminal liability of “legal entities”.
In conclusion, it should be noted that the criminal and legal policy pursued in the New Uzbekistan is based on the principles of humanism and liberalization of criminal punishment, aimed at ensuring reliable protection of the rights and legitimate interests of a person, society and the state and contributes to the implementation of the tasks contained in the decrees of the President of the Republic of Uzbekistan “On the Development Strategy of the New Uzbekistan in 2022-2026 years” and “On the Strategy “Uzbekistan – 2030”.