MITIGATING FACTORS AND CRIMINAL DEFENSES IN CRIMINAL LEGISLATION OF THE KINGDOM OF NORWAY (COMPARATIVE ANALYSIS)

This paper is dedicated to comparative analysis of the criminal legislation of Norway in framework of consideration of the mitigating factors and criminal defenses. The present research is provided overall explore of mitigation of sentence institute in accordance with the existing edition of the Penal Code of the Norway, announced on 20 of May, 2005 and fully entered into force on 1 of October, 2015 (Chapter 16 was entered into force from 7 of March, 2008) and the Criminal Code of the Republic of Uzbekistan, enacted on 22 of September, 1994 and entered into force from 1st of April, 1995, including the issues on determining the punishment for the criminal offences committed in a state of mental disorder as well as insanity and diminished responsibility, for incomplete offences and the criminal complicity, including criminal defenses, institutions on the withdrawal (voluntary refusal) from the commission of an offence and innocent harm. Pursuant to the results of the conducted analysis, similar and different sides of existing criminal laws have been clarified, decisions on the concluded analysis and final conclusion on the implementation of Norway‘s some criminal law norms to the criminal law of the Republic of Uzbekistan has been provided.

VOLUME 3 ISSUE №1 E-ISSN: 2181-1024 A P R Volume I L1 (2022) 3, Issue 2022 TSUL Legal Report 1

12.00.02 – CONSTITUTIONAL LAW. ADMINISTRATIVE LAW. FINANCE AND CUSTOMS LAW

TSUL LEGAL REPORT INTERNATIONAL ELECTRONIC SCIENTIFIC JOURNAL

Rustambekov Islambek Rustambekovich Deputy Rector on Academic Affairs, Tashkent State University of Law, Doctor of Law, Professor

Salaev Nodirbek Saparbaevich Deputy Rector on Research and Innovations, Tashkent State University of Law, Doctor of Law, Professor

Latipov Samir Ildusovich Director of the Center for Legal Initiatives and Innovations, Tashkent State University of Law

Nematov Jasur Aminjonovich Professor of the Tashkent branch of the Russian University of Economics named after GV Plekhanov

Umarkhanova Dildora Sharipkhanovna Dean of the Faculty of International Law and Comparative Legislation, Tashkent State University of Law, Doctor of Law, Associate Professor

Abzalova Khurshida Mirziyatovna Acting Professor of the Department of Criminal Law, Criminology and Anti-corruption, Tashkent State University of Law, Doctor of Law

Nematov Jurabek Nematulloyevich Acting Professor of the Department of Administrative and Financial Law, Tashkent State University of Law, Doctor of Law

Akhmedova Guzalkhon Utkurovna Associate Professor of Criminalistics and Forensic Examination Department of Tashkent State University of Law, Doctor of Law

Ergashev Ikrom Abdurasulovich Head of Scientific Department, Tashkent State University of Law, Associate Professor, Doctor of Philosophy in Law.

Yusupov Sardorbek Bahadirovich Head of the Department of Administrative and Financial Law, Tashkent State University of Law, Associate Professor, Doctor of Philosophy in Law

Gafurova Nozimakhon Eldarovna Head of the Department of International Law and Human Rights, Tashkent State University of Law, Associate Professor, Doctor of Philosophy in Law

E-ISSN: 2181-1024 Volume 3, Issue 1 (2022) TSUL Legal Report 3

Khujaev Shokhjakhon Akmaljon ugli Head of Intellectual Property Law Department, Tashkent State University of Law, Doctor of Philosophy in Law

Uzakova Guzal Sharipovna Head of Environmental Law Department, Tashkent State University of Law, Associate Professor, Doctor of Philosophy in Law

Turdiev Khayitjon Usmonkul ugli Acting Associate Professor of the Department of Theory of State and Law, Tashkent State University of Law, Doctor of Philosophy in Law

Ramazonova Nargiza Abdirashidovna Head of the International Relations Department, Intellectual Property Agency under the Ministry of Justice of the Republic of Uzbekistan, Doctor of Philosophy in Law

Kurbanov Maruf Mamadaminovich Acting Associate Professor of the Department of Criminal Law, Criminology and Anti-corruption, Tashkent State University of Law, Doctor of Philosophy in Law

Narziev Otabek Sadievich Acting Professor of International Private Law Department, Tashkent State University of Law, Doctor of Philosophy in Law

Pirmatov Otabek Shavkatovich Acting Associate Professor of the Department of Civil Procedural and Economic Procedural Law, Tashkent State University of Law, Doctor of Philosophy in Law

Yakubova Iroda Bakhramovna Acting Associate Professor of Intellectual Property Law Department, Tashkent State University of Law, Doctor of Philosophy in Law

Shamsutdinov Behruz Sadriddin ugli Head of the Department of Commercialization of Scientific and Innovative Projects, Tashkent State University of Law

Saydakhmedov Umid Murodovich Judge for Economic Affairs, Tashkent Regional Court, Doctor of Philosophy in Law, Associate Professor

4 TSUL Legal Report Volume 3, Issue 1 (2022) E-ISSN: 2181-1024

Contacts Editorial office address: Tashkent, st. Sayilgoh, 35. Index 100047. Principal Contact Tel.: ([phone number hidden] Fax: ([phone number hidden] E-mail: info@legalreport.tsul.uz

© 2022. TSUL – Tashkent State University of Law. All rights reserved.

E-ISSN: 2181-1024 Volume 3, Issue 1 (2022) TSUL Legal Report 5

12.00.02 – CONSTITUTIONAL LAW. ADMINISTRATIVE LAW. FINANCE AND CUSTOMS LAW

IKHTIYORJON TURABOEV, IKROM ERGASHEV Tax monitoring in Uzbekistan: problems and issues ............................................................8

DILMURODJON RAKHIMOV Organizational and legal issues of gender equality in the civil service .............................. 15

NOILA NURMAMATOVA Mechanism of appeal to the Constitutional Court .............................................................. 23

ILHOM NOROV Problems of public service in the Republic of Uzbekistan: further improvement of the public service system .............................................................................................. 30

12.00.03 – CIVIL LAW. BUSINESS LAW. FAMILY LAW. INTERNATIONAL PRIVATE LAW

BEGALI XOLMIROV The concept, importance and characteristics of electronic currency ................................. 37

MUHAMMAD ALI RAMAZONOV The concept and essence of cryptocurrency ..................................................................... 44

PARIZODABEGIM MUKHAMATKULOVA Some issues of regulation of cybersport and business activities in IT .............................. 51

12.00.04 – CIVIL PROCEDURES LAW. ECONOMIC PROCEDURES LAW. ARBITRATION PROCESS AND MEDIATION

ABDUMURAD KHAKBERDIEV Types of arbitration courts and their classification ............................................................. 57

DONIYORBEK DАVRONOV Procedure and basis for application of procedural coercive measures ............................. 68

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

BUNYOD ISLOMOV Mitigating factors and criminal defenses in criminal legislation of the Kingdom of Norway (comparative analysis) ...................................................................... 78

JALOLIDDIN HAYDAROV Qualification of crimes of torture and other cruel, inhuman or degrading treatment ......... 88

6 TSUL Legal Report Volume 3, Issue 1 (2022) E-ISSN: 2181-1024

12.00.09 – CRIMINAL PROCEDURE. CRIMINOLOGY, OPERATION SEARCH LAW AND FORENSIC EXAMINATION

SARBON URALOV Specific aspects of proof ................................................................................................... 96

KHAYDARALI YUNUSOV Contributions of Central Asian scholars to the development of islamic sciences: Sarakhsi – founder-father of international law ................................................................ 103

DJAMALIDDIN MUSAEV Principles of international cooperation in the field of preventing illicit trafficking in narcotic drugs, psychotropic substances and precursors . ........................................... 111

SHAHNOZA ALMOSOVA The essence of parallel import and problems of its regulation in the Republic of Uzbekistan . .................................................................................................. 121

USMON ALIEV Problems of reforming the UN security council and improving its effectiveness ............. 127

DALER VALIJONOV International legal cooperation of the prosecutors bodies against corruption ................. 134

E-ISSN: 2181-1024 Volume 3, Issue 1 (2022) TSUL Legal Report 7

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

MITIGATING FACTORS AND CRIMINAL DEFENSES IN CRIMINAL LEGISLATION OF THE KINGDOM OF NORWAY (COMPARATIVE ANALYSIS)

ARTICLE INFO Keywords: offence, intent, aggravating factors, mental incapacity, diminished responsibility, self-defence, factual ignorance, ignorance of the law, necessity, attempt, plea agreement, youth victim, youth offender, minor.

Bunyod Islomov, Independent researcher, Academy of the Ministry of Internal Affairs of the Republic of Uzbekistan Senior Legal Adviser of the Legal Department of “KDB Bank Uzbekistan” JSC E-mail: bunyodislomov@gmail.com ORCID: 0000-0001-8827-4900

ABSTRACT This paper is dedicated to comparative analysis of the criminal legislation of Norway in framework of consideration of the mitigating factors and criminal defenses. The present research is provided overall explore of mitigation of sentence institute in accordance with the existing edition of the Penal Code of the Norway, announced on 20 of May, 2005 and fully entered into force on 1 of October, 2015 (Chapter 16 was entered into force from 7 of March, 2008) and the Criminal Code of the Republic of Uzbekistan, enacted on 22 of September, 1994 and entered into force from 1st of April, 1995, including the issues on determining the punishment for the criminal offences committed in a state of mental disorder as well as insanity and diminished responsibility, for incomplete offences and the criminal complicity, including criminal defenses, institutions on the withdrawal (voluntary refusal) from the commission of an offence and innocent harm. Pursuant to the results of the conducted analysis, similar and different sides of existing criminal laws have been clarified, decisions on the concluded analysis and final conclusion on the implementation of Norway’s some criminal law norms to the criminal law of the Republic of Uzbekistan has been provided.

Volume 3, Issue 1 (2022) E-ISSN: 2181-1024

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

I. Introduction Norway’s legal system as well as called as Nordic Legal System belongs to independent Scandinavian (also called “northern”) legal family, combining some features of both the Romano-Germanic and Anglo-American systems [1, P.185; 2]. The first Penal Code was enacted in 1842 and has been into force until the adoption of next Penal Code of 1902 which occupies a special place in the history of bourgeois criminal legislation. Drafted by the prominent Norwegian criminologist Goetz (university professor, Attorney General since 1887), the Penal Code of 1902 (Ordinary Civil Criminal Code) was the first of the codes that reflected the ideas of the sociological school of criminal law, although in general it followed the traditional interpretation of most institutions of General and Special Parts [3]. This Penal Code was replaced by existing Penal Code of Norway, announced on 20 of May, 2005 and fully entered into force on 1 of October, 2015 (Chapter 16 was entered into force from 7 of March, 2008) (hereinafter the “Penal Code of Norway”) [4, 5].

Although the Penal Code 1902 has been repealed, it may nevertheless apply in some cases, particularly regarding to offences committed before 1. October 2015. Moreover, the existing Penal Code may be applied to offences committed before that date in cases where the new law leads to a more favorable outcome for the accused, that is, a milder punishment. The Penal Code of Norway is the central law in the field of punishment, but there are also criminal provisions in a number of other laws [5].

The Penal Code of Norway (Lov om straff (straffeloven)) divides into three parts:

1. Part I. General provisions (Chapters 1-15, sections 1-100) being a General Part provides rules that apply to all or most of criminal offenses as well as system of penalties, Conditions for committal to psychiatric care, General rules on determining sanctions etc.

2. Part II. Criminal acts (Chapters 16- 31, sections 101-410) being a Special Part establishes rules on the various criminal offenses.

3. Part III. Final provisions (Section 411) provides the procedure of entering into force on that regulations issued pursuant to the Penal Code of 1902 shall continue to apply after the present act enters into force. And Chapter 16 (Genocide, crimes against humanity and war crimes) may enter into force as of the date decided by the King from 7 of March, 2008. As of the date that chapter 16 enters into force, the first part of the Penal Code of 2005 shall apply to the provisions in chapter 16. The general part of the Penal Code 1902 shall not apply to chapter 16. As of the date that chapter 16 enters into force, the following changes occur to other acts.

II. Research results and discussion Thus, we will perform the succeeding comparative analysis of the Penal Code of Norway in terms of mitigation of punishment, as well as taking into account the criminal defences.

Firstly, Penal Code of Norway as well as Criminal Code of Uzbekistan stipulates a provisions on the retroactive effect of criminal law. Especially, the criminal legislation at the time of the act applies. However, the legislation at the time of the decision applies when this results in a more favorable outcome for the person charged and the legislative amendment is due to a change in view as to which acts should be punishable or as to the use of criminal sanctions, according to paragraph 1 of section 3 of the Penal Code of Norway says.

Detailed provisions on application of criminal law in time provides also Criminal Code of Uzbekistan, which state that, a law decriminalizing an act, mitigating a penalty or otherwise improving the position of a person, shall be retroactive, that is, shall be applied to persons, who had committed the appropriate act before this law came into effect, as well as to persons, who are serving their penalty or have served it with non-cancelled conviction. A law criminalizing an act, severing a penalty or otherwise worsening position of a person, shall not be retroactive (paragraphs 2 and 3 of the article 13).

Secondly, article 54 of the Criminal Code of the Republic of Uzbekistan enacted on 22 of September, 1994 and entered into force from 01 of April, 1995 (hereinafter the “Criminal Code of Uzbekistan”) stipulates General Principles

E-ISSN: 2181-1024 Volume 3, Issue 1 (2022) TSUL Legal Report 79

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

of composition of Penalty regarding that, a person shall be subjected to penalty, if he, according to the procedure established by law, is found guilty in commission of an offence. A court shall impose a penalty within the limits established by an article of the Special Part envisaging liability for an offence committed, in accordance with provisions of the General Part of this Code. Whereas imposing a penalty, a court shall take into account nature and degree of social danger of a committed offence, motives thereof, nature and degree of a harm caused, personality of a guilty person, circumstances mitigating and aggravating a penalty. Despite the fact that Penal Code of Norway sets Chapter 14 on General rules on determining sanctions (Fellesregler for reaksjonsfastsettelsen), it does not prescribe the provision such in the article 54 of the Criminal Code of Uzbekistan. Chapter 14 of the Penal Code of Norway provides provisions on aggravating (Skjerpende omstendigheter) and mitigating circumstances (Formildende omstendigheter), rules on mitigation of punishment etc. In this regard, as opposed to the Penal Code of Norway, Criminal Code of Uzbekistan says that during the process of imposition of penalty process courts takes into account mitigating and aggravating factors as well as a nature and degree of social danger of a committed offence, motives thereof, nature and degree of a harm caused, personality of a guilty person (article 54). Thirdly, both of Criminal Codes of Norway and Uzbekistan stipulates the list of mitigating factors called as “circumstances mitigating the punishment” at the Criminal Code of Uzbekistan and “mitigating circumstances” (Formildende omstendigheter) at the Penal Code of Norway. Pursuant to the section 78 of the Penal Code of Norway, in connection with sentencing, mitigating factors to be given particular consideration are that: a) there exists a situation or condition as specified in section 80 b), c), d), e), i) or j); b) the offender has prevented, reversed or limited the harm or loss of welfare caused by the offence, or sought to do so;

c) the offence was to a significant degree occasioned by the circumstances of the aggrieved party; d) the offender had, at the time of the act, an impaired perception of reality because of a deviant state of mind, a mild mental disability, impaired consciousness or severe mental agitation; e) the offence was committed a long time ago, or the proceedings have taken longer than is reasonable based on the nature of the offence, through no fault of the offender; f) the offender has made an unreserved confession, or contributed significantly to solving other offences; g) the offender himself/herself has been severely affected by the offence, or the criminal sanction will impose a heavy burden due to advanced age, illness or other circumstances; h) the prospects for rehabilitation are good; i) the offender was under 18 years of age at the time of the act. In its part, paragraph 1 of the article 55 of Criminal Code of Uzbekistan stipulates ensuing list of mitigating factors: a) voluntary surrender, active repentance, or assistance in offence detection; b) voluntary expiation of the harm; c) commission of an offence due to sever personal, family, or other conditions; d) compulsive offence or offence committed due to financial, seniority, or other dependence; e) commission of an offence in a heat of passion caused by violence, great insult, or other wrongful act of a victim; f) commission of an offence in excess of necessary self-defense, extreme necessity, infliction of injury when apprehending a person having committed a socially dangerous act, justifiable professional or economic risk; g) commission of an offence by a minor; h) commission of an offence by a pregnant woman; i) commission of an offence under influence of wrongful or amoral behavior of a victim. However, unlike the Penal Code of Norway, Criminal Code of Uzbekistan establishing as a rule on that, during determining a penalty,

80 TSUL Legal Report Volume 3, Issue 1 (2022) E-ISSN: 2181-1024

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

a court may recognize a mitigating factor not envisaged by foregoing list (paragraph 2 of the article 55). Furthermore, a mitigating factor envisaged by an article of the Special Part of this Code as an element of offence composition shall not be taken into account throughout determining a penalty (paragraph 3 of the article 55). According to foregoing provisions on that the list of mitigating factors is not an exhaustive, we can come to a conclusion that the judges in Uzbekistan are provided with the right to wider judicial discretion. Along with the mitigating factors, Criminal Code of Uzbekistan also stipulates a “circumstances considerably decreasing a degree of social danger of a committed offence” and “exceptional cases”. So that pursuant to the article 57 (imposition of lighter penalty): A court, taking into account circumstances considerably decreasing a degree of social danger of a committed offence, may, at exceptional cases, impose a penalty below the lower limit of severity envisaged by an article of the Special Part of this Code for an offence in question, or another, more lenient penalty not envisaged by an appropriate Article (paragraph 1). On the same grounds, a court may abstain from imposing a mandatory additional penalty envisaged by an article of the Special Part of this Code (paragraph 2). As circumstances considerably decreasing a degree of social danger of a committed offence may be recognized a circumstances characterizing in the aggregate an act, personality of a guilty person, degree and form of his guilt, his behavior before and after the offence, grounds for and contributing circumstances of the offence (paragraph 3). Moreover, The Penal Code of Norway prescribes “particularly mitigating circumstances” (sub-paragraph “g” of the section 80), which may be a ground for imposition of a penalty below the minimum penalty or a less severe type of penalty, that are similar in legal purpose with the foregoing “circumstances considerably decreasing a degree of social danger of a committed offence” prescribed by the article 57 of Criminal Code of Uzbekistan.

The Penal Code of Norway as well as the Criminal Code of Uzbekistan doesn’t provide legal definition for the terms “mitigating circumstances”, “particularly mitigating circumstances”, “circumstances mitigating the punishment” and “exceptional cases”. Fourthly, Criminal Code of Uzbekistan establishes the special provisions on mitigation of punishment, stipulated in the articles 57 (imposition of lighter penalty), 57-1 (imposition of punishment in case of active repentance of the perpetrator of the deed) and 57-2 (imposition of punishment for offences for which a plea agreement has been concluded). Successively, the Penal Code of Norway provides for several of the consecutive special provisions regarding the institution of mitigation of punishment as well as imposition of a penalty below the minimum penalty or a less severe type of penalty (Fastsetting av straff under minstestraffen eller til en mildere straffart) (section 80) and circumstances which may lead to exemption from punishment (Forhold som kan føre til straffritak) (section 81). Each foregoing separate rule on mitigation of punishment on the process of sentencing will be considered alternately. In this case as well as in present paper we are not considering mitigation of punishment on the process of its execution that is serving a sentence. Thus, section 80 of the Penal Code of Norway establish the rule on that the penalty may be set below the minimum penalty of the penal provision or to a less severe penalty type when the offender a) 1. without knowing he/she was under suspicion has to a significant degree prevented or reversed the harm caused by the offence, or 2. has made an unreserved confession, b) is being sentenced for attempt, c) 1. has acted on the basis of a dependent relationship to another participant, or 2. has only participated to a minor degree, d) has exceeded the limits of 1. an act of necessity (see section 17), 2. self-defence (see section 18), or 3. self-enforcement (see section 19),

E-ISSN: 2181-1024 Volume 3, Issue 1 (2022) TSUL Legal Report 81

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

e) has acted out of justifiable anger, under compulsion or under obvious danger, f) at the time of the act had a significantly impaired perception of reality because of a severely deviant state of mind, mental disability or impaired consciousness, but is not unaccountable pursuant to section 20 second paragraph, g) has acted in a self-induced state of intoxication or in a self-induced state of unaccountability pursuant to section 20 fourth paragraph, and there are particularly mitigating circumstances, h) is under 18 years of age at the time of the act, or i) has acted under negligent ignorance of the law when violating a penal provision which requires intent or gross negligence.

Furthermore, section 81 of the Penal Code of Norway provides the circumstances which may lead to exemption from punishment. In this way, the court may acquit any person who: a) without knowing he/she was under suspicion, has to a significant degree prevented or reversed the harm caused by an offence which is punishable by a fine, or b) has exceeded the limits of:

1. an act of necessity (see section 17), 2. self-defence (see section 18), or 3. self-enforcement (see section 19), and special reasons warrant acquittal.

The difference between the mitigating factors prescribed by sections 78 and 80 in that, factors from the section 78 may mitigate any type of punishment, however factors from the section 80 may be ground for imposing the punishment below the minimum penalty of the offence composition accordingly. We may find that some of foregoing factors as the age of offender under 18 at the time of act may be a ground for usual mitigating of punishment as well as for mitigating the punishment below the minimum limit set in offence’s composition. In our view, at such cases the decision on the mitigation of punishment or mitigation to a level below the established minimum limit is at the discretion of the court. Similarly, in the cases of exceeding the limits of an act of necessity, self-defence or self-enforcement, the court decides to impose the penalty below the minimum limit set in the offence’s composition or exempt from the punishment completely.

Thereof, Criminal Code of Uzbekistan provides the following rules on mitigation of punishment along with foregoing provisions on imposition of lighter penalty established in the article 57:

I. Imposition of punishment in case of active repentance of the perpetrator of the deed (article 57-1):

If there are circumstances mitigating the punishment provided for in sub-paragraphs “a” and “b” of paragraph one of Article 55 of this Code, and there are no circumstances aggravating the punishment provided for in paragraph one of Article 56 of this Code, the term or amount of punishment may not exceed two-thirds of the maximum penalty provided for by the relevant article of the Special Part of this Code. This rule does not apply to persons who have committed offences related to premeditated murder under aggravating circumstances (paragraph 2 of article 97) and terrorism (paragraph 3 of Article 155).

II. Provisions on imposition of punishment for offences for which a plea agreement has been concluded (article 57-2) has been amended to Criminal Code relatively recently on the 18 of February, 2021:

The term or amount of punishment imposed for offences for which a plea agreement has been concluded may not exceed half of the maximum punishment provided for by the relevant article (part) of the Special Part of this Code.

Fifthly, the Criminal Code of Uzbekistan pays separate attention to the issues of responsibility of minors, allocating separate chapters to these issues (Section Six of the General Part, Chapters XV-XVI). In addition, by the Law of the Republic of Uzbekistan dated 7 of December, 2021 No. LRU-735 “On amendments and supplements to certain legislative acts of the Republic of Uzbekistan in connection with further improvement of the system of ensuring guarantees of the rights of the child”, the age of criminal responsibility of minors was raised from 13 to 14 years (paragraph 2 of article 17). In accordance with the article 17, physical persons may be involved as subjects of criminal liability from the age fourteen, sixteen and eighteen years

82 TSUL Legal Report Volume 3, Issue 1 (2022) E-ISSN: 2181-1024

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

accordingly for the relevant compositions of offences. Section Six of the Criminal Code of Uzbekistan is called as “Criminal liability of minors” and sets the system of penalty for physical persons committed an offence under eighteen years of age. Besides, Criminal Code of Uzbekistan provides enough much privileges for minors as:

1. When considering an issue of recognition of a person as a special dangerous recidivist, convictions by courts for offences committed by the person under the age of eighteen, as well as withdrawn or cancelled convictions in the procedure established by law, shall not be taken into consideration (paragraph 6 of the article 34).

2. A long term of imprisonment as well as life imprisonment may not be imposed on a person who has committed an offence under the age of eighteen (paragraph 4 of the article 50, paragraph 3 of the article 51) etc.

As per of Penal Code of Norway the person who was over 15 years old at the moment of offence commission are criminal liable (paragraph 1 of the section 20). Moreover, any person who was under 18 years of age at the time of the act may only be given an immediate sentence of imprisonment when required in view of the circumstances. The sentence of imprisonment may not exceed 15 years even if the penal provision authorizes imposition of a stricter penalty (section 33). In its part, Penal Code of Norway also provides Chapter 8a (sections 52a-52c) on youth sentences (Ungdomsstraff).

Among other things, section 52a of the Penal Code of Norway, a youth sentence including a youth victim-offender meeting and youth action plan pursuant to chapter IV of the National Mediation Service Act may be imposed instead of a sentence of imprisonment if: the offender was under 18 years of age at the time of the act, the offender has committed repeated or serious criminal acts, the offender consents and is domiciled in Norway, and the purpose of the penalty would not be defeated by a non-custodial sanction.

In this regard, in our view Criminal Code of Uzbekistan provides much more detailed provisions on minor’s criminal liability than relevant Code of Norway.

Sixthly, the rules on imposition of punishment for an unсompleted offence under the Penal Code of Norway are provided only for attempted (Forsøk) offence (paragraph 1 of the section 16), while there is no question on criminal liability of preparation for an offence as well as the rules of mitigation of punishment for unсompleted offence.

In its turn, Criminal Code of Uzbekistan provides much more detailed rules of criminal liability to preparation for offence and criminal attempt (article 25) as well as the subsequent mitigation of punishment provisions:

I. When imposing punishment for an uncompleted offence, the court, governed by the general principles of sentencing, also takes into account the severity of the offence, the degree of implementation of the criminal intent and the reasons why the offence was not completed (paragraph 1 of the article 58).

II. The term or amount of punishment for preparation for an offence and attempted offence may not exceed three-quarters of the maximum punishment provided for by the relevant article of the Special Part of this Code. This rule does not apply when imposing punishments: a) to particularly dangerous repeat offenders, members of an organized group or criminal community; b) for uncompleted offences against peace and security, as well as offences related to: - premeditated murder under aggravating circumstances; - rape or forcible satisfaction of sexual needs in an unnatural form in relation to the victim, obviously for the perpetrator who has not reached the age of fourteen; - smuggling of nuclear, chemical, biological and other types of weapons of mass destruction, materials and equipment, radioactive materials that can obviously be used in its creation (paragraph 2 of the article 58).

III. A sentence of life imprisonment cannot be imposed for an uncompleted offence (paragraph 3 of the article 58).

E-ISSN: 2181-1024 Volume 3, Issue 1 (2022) TSUL Legal Report 83

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

Seventhly, the institute on the “voluntarily desists from committing the offence” in the Penal Code of Norway is associated with an attempt pursuant to the rule on that, any person who voluntarily desists from committing the offence or prevents its commission, shall nevertheless not be penalised for attempt (paragraph 2 of the section 16).

For its part, paragraph 2 of the article 26 and paragraph 5 of the article 30 of the Criminal Code of Uzbekistan provides a direct indication that withdrawal (voluntary refusal) from the commission of an offence excludes criminal liability. Furthermore, a person who voluntarily refused to complete an offence is liable under this Code if the act actually committed by him contains all the signs of a composition of the offence (paragraph 3 of the article 26).

Eighthly, Unlike the Penal Code of Norway, Criminal Code of Uzbekistan provides the rules on mitigation of punishment for participiants. Particularly, in accordance with the paragraph 4 of the article 58 of Criminal Code of Uzbekistan, on imposition a penalty for a joint offence, a court shall take into account a nature and degree of participation therein of each of guilty persons. Mitigating and aggravating circumstances relating to personality of each accomplice, shall be taken into account by a court when inflicting a penalty on that accomplice. Furthermore, Criminal Code of Uzbekistan provides more clarified provisions on participiant’s criminal liability (articles 27-31).

Ninth, General Part (Part I) of the Penal Code of Norway as well as the same Part of the Criminal Code of Uzbekistan provides a number of criminal defenses, exluding for criminal liability. In particular, Penal Code of Norway sets the consecutive circumstances exluding criminal liability in case of complying to certain conditions:

1. Necessity (Nødrett). An act which would otherwise be punishable, is lawful when: a) it is committed to save life, health, property or other interests from a risk of harm which cannot be averted in another reasonable manner, and b) this risk of harm is far greater than the risk of harm associated with the act (section 17).

2. Self-defence (Nødverge). In accordance with the section 17, an act which would otherwise be punishable, is lawful when it: a) is committed to avert an unlawful attack, b) does not exceed what is necessary, and c) does not clearly go beyond what is justifiable, taking into account the dangerousness of the attack, the type of interest the attack violates, and the culpability of the assailant (paragraph 1).

The rule in the first paragraph applies correspondingly to any person who effects a lawful arrest or attempts to prevent a person from evading being remanded in custody or serving a custodial sentence (paragraph 2).

The exercise of public authority may only be met with an act of self-defence if the exercise of authority is unlawful and the person who exercises it acts with intent or gross negligence (paragraph 3).

3. Self-enforcement (Selvtekt). An act which would otherwise be criminal, is lawful when the entitled person acts to restore an unlawfully altered state, and it would be unreasonable to wait for assistance from the authorities. Force may be used against a person only when the rights violation is clear, and must not exceed what is justifiable (section 19).

4. Commission an offence by person who at the time of the act is under 15 years old (paragraph 1 of the section 20). Prescribed person is not criminal liable.

5. Commission an offence in mental incapacity. Any person who, at the time of the act is unaccountable due to a: a) severely deviant state of mind; b) severely impaired consciousness or c) severe mental disability (paragraph 2 of the section 20).

And pursuant to Penal Code of Norway, factual ignorance (Faktisk uvitenhet) (section 25) and ignorance of the law (Rettsuvitenhet) (section 26) are criminal liable.

In turn, the Criminal Code of Uzbekistan provides for such criminal defenses, excluding the criminality of the act as

84 TSUL Legal Report Volume 3, Issue 1 (2022) E-ISSN: 2181-1024

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

the minor nature of an act; self-defense; extreme necessity; causing harm during the detention of a person who committed a socially dangerous act; execution of an order or other duty; justified professional or economic risk; commission of an act as a result of physical or mental coercion or threat (article 35), more than half of which are not provided in the Penal Code of Norway.

The criminal defence provided in the paragraph 2 of the section 18 of the Penal Code of Norway is close to the defence from the Criminal Code of Uzbekistan on the causing harm during the detention of a person who committed a socially dangerous act (articles 35, 39).

Moreover, if Criminal Code of Uzbekistan provides the mitigating factors connected with criminal defences such commission of an offence in excess of necessary self-defense, extreme necessity, infliction of injury when apprehending a person having committed a socially dangerous act, justifiable professional or economic risk (sub-paragraph “e” of the paragraph 1 of article 55) which may mitigate the punishment only, than Penal Code of Norway sets that exceeding the limits of act of necessity, self-defence and self-enforcement may be a ground for imposition of a penalty below the minimum penalty or a less severe type of penalty (section 80) as well as for exemption from punishment (section 81).

Tenth, Penal Code of Norway (paragraph 2 of the section 20) as well as the Criminal Code of Uzbekistan (article 18) considers the state of “mental incapacity” as an criminal defense excluding criminal liability, but additionally Criminal Code of Uzbekistan implies the possibility of applying compulsory medical measures. It should be noted that Penal Code of Norway also provides a procedure on committal to psychiatric care and committal to care (Overføring til tvungent psykisk helsevern og tvungen omsorg) (Chapter 12, sections 62-65).

Eleventh, Penal Code of Norway does not consider the commission of an offence in a state of diminished responsibility, although the article 18-1 of the Criminal Code of Uzbekistan explicitly stipulates that persons in a state of diminished responsibility are liable, and compulsory medical measures may be applied to such persons by a judge simultaneously with criminal punishment.

III. Conclusion Having analysed the institute of mitigation of punishment, it can be argued that, the Penal Code of Norway and the Criminal Code of Uzbekistan have much similar sides such as stipulating the list of mitigating factors and criminal defences, special provisions on mitigation of punishment. Moreover, we may suppose that on the basis of a rule provided in the paragraph 2 of the article 55 the judges in Uzbekistan have a right to wider judicial discretion.

As per of results of a comparative analysis, we propose to adopt some of the provisions on mitigation of punishment from Penal Code of Norway and implement to Criminal Code of Uzbekistan, which, from our point of view, will certainly contribute to the improvement of the criminal law norms of the national criminal law:

I. To implement the provisions of the sub-paragraph “g” of the section 78 of the Penal Code of Norway to the article 55 (circumstances mitigating the punishment) of Criminal Code of Uzbekistan by amending the paragraph 1 by the sub-paragraph “k” in the ensuing edition: Article 55. Circumstances mitigating the punishment Mitigating circumstances shall be: …“j) the offender himself/herself has been severely affected by the offence, or the criminal sanction will impose a heavy burden due to advanced age, illness or other circumstances”.

II. To implement the provisions of the Chapter 11 (sections 60-61) on deferment of sentencing and waiver of sentencing of Penal Code of Norway to the Criminal Code of Uzbekistan by amending the articles 60-1 and 60-2 in the succeeding edition, what will contribute to the subsequent relief of the offender’s state:

“Article 60-1. Deferment of sentencing Even if guilt is deemed proven, the court may defer sentencing for a probation period.

When an offender has committed several offences and a single sentence is to be imposed, deferment of sentencing may be combined with:

E-ISSN: 2181-1024 Volume 3, Issue 1 (2022) TSUL Legal Report 85

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW

a) a period of immediate imprisonment, which may not be shorter than 14 days, or, b) a fine, even if a fine is not prescribed as the penalty for the offences”.

“Article 60-2. Waiver of sentencing Even if guilt is deemed proven, the court may, when exceptional reasons so warrant, waive sentencing.

In deciding whether exceptional circumstances apply, particular weight shall be given to whether imposing a sentence will have the effect of an unreasonable additional burden on the offender, provided that the purpose and effects of the penalty in general do not indicate that a sanction should be imposed.

Section 60-1, second paragraph, applies correspondingly”.

III. To implement the provisions of the section 19 on criminal defence such as self-enforcement of Penal Code of Norway to the Criminal Code of Uzbekistan by: a) supplementing paragraph 2 of the article 35 in the ensuing edition:

Article 35. Definition of criminal defences Circumstances, under which an act containing elements envisaged by this Code is not a crime due to lack of a social danger, illegality, and guilt, shall be criminal defence (paragraph 1).

Criminal defenses, excluding the criminality of the act shall be: the minor nature of an act; self-defense; extreme necessity; causing harm during the detention of a person who committed a socially dangerous act; execution of an order or other duty; justified professional or economic risk; commission of an act as a result of physical or mental coercion or threat; self-enforcement (paragraph 2). b) amending the article 41-2 in the consecutive edition:

Article 41-2. Self-enforcement An act which would otherwise be criminal, is lawful when the entitled person acts to restore an unlawfully altered state, and it would be unreasonable to wait for assistance from the authorities. Force may be used against a person only when the rights violation is clear, and must not exceed what is justifiable.

IV. To implement the provisions of the paragraph 3 of the section 18 of Penal Code of Norway on criminal defence such as self-defence to the article 37 of Criminal Code of Uzbekistan by amending the paragraph 5 in the consecutive edition:

Article 37. Self-defense An act committed in a state of necessary self-defense, that is, when protecting life or rights of a person defending oneself or another person, or interests of the State and society from an illegal attempt by causing harm to an attempter, shall not be a crime, if no excess of self-defense occurred (paragraph 1).

Excess of self-defense shall be a clear inadequacy of a defense for a nature and danger of an attempt (paragraph 2).

A right to necessary defense shall be enjoyed regardless of existing possibility to call in aid of other persons or authorities, or to prevent an attempt by other way (paragraph 3).

Intentional provocation of an attempt with the purpose of causing harm shall not be a necessary defense (paragraph 4).

The exercise of public authority may only be met with an act of self-defence if the exercise of authority is unlawful and the person who exercises it acts with intent or gross negligence (paragraph 5).

Furthermore, taking into account the process relevance of drafting of Criminal Code in new edition in framework of development of criminal, criminal procedure and penal enforcement legislation to fulfill of Goal 14 of the Decree of the President of the Republic of Uzbekistan, dated 28 of January, 2022 No. PD-60 “On the development strategy of new Uzbekistan for 2022-2026 years” it is recommended for legislative body of Uzbekistan to learn and adopt the provisions on the Enterprise penalties (Foretaksstraff) (Chapter 4, sections 27-28, 89), Confiscation (Inndragning) (Chapter 13, sections 66-76), imposition of penalties exceeding the maximum penalty (multiple offences, repeated offences, organised crime) (Fastsetting av straff ut over lengstestraffen (flere lovbrudd, gjentakelse, organisert kriminalitet)) (section 79) from the Penal Code of Norway, whichever in our view provides complete conditions regarding to foregoing institutions.

86 TSUL Legal Report Volume 3, Issue 1 (2022) E-ISSN: 2181-1024

12.00.08 – CRIMINAL LAW, CRIME PREVENTION. CRIMINOLOGY. PENAL LAW