QUALIFICATION OF CRIMES OF TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT

The study provides, giving a detailed legal definition of the criminal structure of crimes of torture and other cruel, inhuman or degrading treatment or punishment, comparative and legal analysis of national and foreign legislation on liability for torture and related crimes with the usage of international conventions, qualification of torture and other cruel, inhuman or degrading treatment. In addition, clear and detailed proposals have been put forward to improve the legislation, in particular the Criminal Code, through the study of international experience and norms of international law. A number of recommendations have been developed for a fundamental improvement in law enforcement practice, with an analytical and legal analysis of existing shortcomings in the legal system based on the results of data on cases of torture. With this topic it is clarified the composition of crimes related to torture and other illegal treatment or punishment. The subjective and objective sides of the crime and the basis of qualification, as well as its problems on qualifying the crime are clearly defined.

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

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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

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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

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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.

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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

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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

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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

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QUALIFICATION OF CRIMES OF TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT

Keywords: torture, cruel treatment, inhuman treatment, degrading treatment, illegal psychological, mental, physical pressure, unlawful physical or other coercion, suspected, law enforcement officer, the corpus delicti.

Haydarov Jaloliddin Hamza ugli, Master’s degree student Tashkent State University of Law e-mail: haydarovjaloliddin99@gmail.com ORCID: 0000-0002-4504-9110

The study provides, giving a detailed legal definition of the criminal structure of crimes of torture and other cruel, inhuman or degrading treatment or punishment, comparative and legal analysis of national and foreign legislation on liability for torture and related crimes with the usage of international conventions, qualification of torture and other cruel, inhuman or degrading treatment. In addition, clear and detailed proposals have been put forward to improve the legislation, in particular the Criminal Code, through the study of international experience and norms of international law. A number of recommendations have been developed for a fundamental improvement in law enforcement practice, with an analytical and legal analysis of existing shortcomings in the legal system based on the results of data on cases of torture. With this topic it is clarified the composition of crimes related to torture and other illegal treatment or punishment. The subjective and objective sides of the crime and the basis of qualification, as well as its problems on qualifying the crime are clearly defined.

I. Introduction protection. In particular, the Decree of the As a result of the ongoing legal reforms President of the Republic of Uzbekistan PFin Uzbekistan, significant progress has been 6012 “On approval of the National Strategy made in the field of human rights and their of the Republic of Uzbekistan in the field of

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human rights” dated June 22, 2020 provides for the holding of the International Forum on Human Rights in Samarkand. Under the Commissioner of the Oliy Majlis, public groups have been created to identify and prevent cases of torture. “On Amendments and Additions to Certain Legislative Acts of the Republic of Uzbekistan” was adopted on April 4, 2018 in connection with the adoption of measures to strengthen the guarantees of the rights and freedoms of citizens, the concepts of an administrative offender and a defendant were added to Article 235 of the Criminal Code of the Republic of Uzbekistan, and the scope of the subject of the crime was expanded. Decree PQ-3723 “On Measures to Fundamentally Improve the System of Criminal and Criminal Procedure Legislation” also establishes specific measures to prevent torture.

Cases of torture encourage countries to fight torture with the help of international instruments. In particular, article 5 of the Universal Declaration of Human Rights, article 7 of the International Convention on Civil and Political Rights, article 5 of the African Charter on Human and Civil Rights, article 5 of the American Convention on Human Rights, article 3 of the European Convention on Human Rights calls on member states to fight against torture and other cruel, inhuman or degrading treatment or punishment [8, 9, 10, 11, 12].

The concept of torture is defined in Article 1 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 10 December 1984. The term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions [7].

II. Research results and discussion Torture, according to the Criminal Code of the Republic of Uzbekistan, is the use of psychological, physical, mental or other influence by a law enforcement officer or with his consent on a participant in a criminal case. The victims of such cases of torture are mainly defendants, suspected of committing a crime, and their close relatives.

The basis for bringing to justice for torture and other cruel, inhuman or degrading forms of treatment or punishment is the presence in them all the elements of the crime. According to M.Kh. Rustambaev, the corpus delicti is a set of objective and subjective elements necessary to evaluate a specific socially dangerous act as a crime [2, P.151]. As the only basis for criminal prosecution the corpus delicti is a central element of criminal law [3, P.41]. Since these elements are enshrined in criminal law, they are necessary for the recognition of a criminal act as a crime. The corpus delicti of the crime are:

1. The object of the crime; 2. The objective side of the crime; 3. The subject of the crime; 4. The subjective side of the crime.

According to Rustambaev, the main direct object of this crime is social relations that ensure the dignity of the individual, the right of everyone to demand human treatment, as well as the procedure for conducting an inquiry and preliminary investigation established by law [1, P.539]. A direct object is the life or health, honor and dignity of the tortured [4, P.49]. Although crimes related to the use of torture are included in the criminal code as crimes against justice, we believe that this crime is aimed at causing harm to life and health, honor and dignity of a person.

The disposition of Article 235 of the Criminal Code of the Republic of Uzbekistan clearly defines the victims of crimes related to the use of torture [13]. Victims may be the following categories of persons:

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administratively detained, suspected, accused; defendant; convicted; witness; victim; another participant in the criminal process; their close relatives. The disposition of the article 235 of the Criminal Code of the Republic of Uzbekistan was changed by the law “On amendments and additions to certain legislative acts of the Republic of Uzbekistan in connection with the adoption of measures to strengthen the guarantees of the rights and freedoms of citizens in court” adopted on 04.04.2018 which introduced the concept of people with the consent of a law enforcement officer. Even after this change, the age of the subject in Article 17 of the Criminal Code remains equal to 18 years for the Article 235. However, this crime can be committed by a general subject under the age of 18 with the consent of a law enforcement officer.

The objective side of the crime is a set of signs that have an objective social and legal significance, characterizing the external state of socially dangerous aggression against an object protected by a criminal law, representing the degree of social danger of aggression. The objective side includes such elements as a criminal act and a causal relationship between it, time and place [3, P.65]. According to B.Chekkaria, torture could have been used during the investigation of the case, either by forcing him to confess to a crime, or to force him to explain his contradictory testimony during interrogation, or to report the crime to his accomplices [5, P. 96-97].

The objective side of a crime is a set of signs that represent the external side of a socially dangerous act that caused harm to an object protected by criminal law [2, P.157]. The disposition of the article of the special part of the Criminal Code of Uzbekistan will express the objective side of the crime. Thus, we will be able to identify signs of how and when the crime was committed, as well as qualify a socially dangerous act. Through the objective side of the crime, we identify such signs as the methods and timing of the commission of criminal aggression. In particular, by studying the disposition of Article 235 of the Criminal Code, which we are studying, we will be able to interpret the objective side of the crime. The objective side of the crime is unlawful mental, psychological, physical or other forms of oppression committed by intimidation of beating or torture, beating, torture or other illegal actions.. In this case, you can clarify the objective side of the crime: - illegal psychological pressure; - illegal mental pressure; - unlawful physical or other coercion.

According to X.Karimov, article 235 of the Criminal Code of the Republic of Uzbekistan objectively includes two actions. That is, the first act is intimidation of beating or torture, beatings, torture or other illegal actions, the second act is an illegal mental, psychological, physical impact or otherwise [4, P.56-57]. In our opinion, the objective side of the crime is the unlawful physical, mental and psychological impact. Intimidation of beating and torture, beating, torture is carried out by means of illegal mental, psychological and physical influence. At the same time, the act of intimidation of beating, beating, and torture is an optional sign of the objective side, and an unlawful mental, psychological and physical impact is a necessary sign.

Cruel, inhuman, degrading treatment and punishment are the first manifestations of torture and include the following elements: - committing or ignoring actions degrading human dignity; - to be ruthless to those suspected of committing a crime; - deprivation of existing fundamental rights of persons suspected of committing a crime; - apply moral torture to other persons suspected of committing a crime, punish them.

More precisely, the basic rights of a person are taken away from a participant in a criminal case in order to obtain evidence that is designed to break him mentally, achieve his goal and not leave traces of his actions. Everyone has basic

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and inalienable rights, such as eating at certain times of the day, sleeping at night, and speaking. In criminal cases keeping a suspect awake or feeding him once a day is cruel, inhuman treatment. The continuation of such actions should be regarded as torture. In particular, refusing to feed a suspect at certain times of the day for a month is a form of abuse. Or his solitary confinement in a dark room for some time may first be regarded as cruel, inhuman treatment and form of punishment, and its constant and uninterrupted continuation must be regarded as torture.

With the development of criminal law, the number of complaints and appeals about the use of torture and other cruel, inhuman types of treatment and punishment by the justice authorities is growing. At the same time, criminal legislation of the Republic of Uzbekistan does not provide a clear definition of the concept of cruel, inhuman, degrading treatment and punishment. That is, keeping a suspect in a dark room for several days, depriving a suspect, accused or other participants of sleep while in a pre-trial detention center, interrogating them while standing for a day and other actions are cruel, inhuman and degrading actions. The fact of discriminatory treatment should be considered as a form of punishment and it should be clarified. - Cruel treatment and punishment - cruelty to the victims of crime, free from the elements of mercy, forgiveness; - Inhuman treatment and punishment - the commission of actions that are illogical for a person to commit, that do not provide the victim with the treatment that should be done humanly; - Degrading treatment and punishment is a set of actions aimed at humiliating the dignity of a person, breaking his pride, disrespecting him in public places.

Article 235 of the Criminal Code of the Republic of Uzbekistan contains the subject of the crime - both general and special subject. As noted above, the disposition of Article 235 of the Criminal Code directly lists the persons who may be the subject of this crime. The subjects of the crime are: - law enforcement officer; - an employee of another state institution; - other persons with testimony or notification or with tacit consent of law enforcement officer.

The general subject for this crime is a sane person who has reached a certain age and committed a socially dangerous act, and a special subject is a sane law enforcement officer or other official who has reached a certain age.

V.Semenov gives the following definition of the concept of law enforcement agencies. Law enforcement agencies are state bodies and public organizations that operate on the basis of legality and democratic principles, ensure law and order, protect the rights and freedoms of citizens, trade unions, society and the state, prevent offenses and law as well as to apply coercive measures on the part of the state or society to those who violate law and order [6, P.9]. Law enforcement agencies are the bodies responsible for ensuring the rule of law and combating crime.

We need to understand the concept of a member of other government agencies as other law enforcement officers. Since, given that the crime of torture is committed against participants in criminal proceedings, the subject should be understood as the subjects responsible for conducting criminal proceedings. Other law enforcement officers may be defined as law enforcement officers who are not responsible for handling a criminal case but are in direct contact with the victim of a crime. For example, we can understand the employees of a penitentiary institution, employees of a pre-trial detention center. To define, the subject of this crime can be not only officials, but also persons under the control of officials.

The general subject of the article 235 of the Criminal Code is a sane person who has reached a certain age. The purpose of including a common subject in Article 235 of the Criminal Code of the Republic of

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Uzbekistan is to ensure that common subjects who have committed a crime are brought to justice with the consent or testimony of a special subject of the crime. The trend of criminal law has shown that the number of cases has increased when an official of an investigative body commits a crime using persons who are not directly involved in the criminal case. The legislature also expanded the range of subjects, protecting the social relations that criminal law should protect.

A person who has reached the age of 18 may be held liable under article 17 of the Criminal Code for torture and other cruel, inhuman or degrading treatment or punishment. The composition of the subject of Article 235 of the Criminal Code is also expanded by the Law of the Republic of Uzbekistan “On Amendments and Additions to Certain Legislative Acts of the Republic of Uzbekistan” “In connection with the adoption of measures to strengthen the guarantees of the rights and freedoms of citizens in the judicial process” dated April 4, 2018. Previously, the subject of the crime consisted only of special subjects, but after this change it was extended to other persons with the consent or tacit consent of a law enforcement officer or other official. The fact that the legislator left in Article 17 of the Criminal Code the age of the subject of the crime at 18 years, the general norm for the age of the subject of the crime, which is directly related to this change, has led to a legal imbalance. That is, a 16-year-old teenager who has committed the crime of torture with the consent of a law enforcement officer is released from liability, since he cannot be the subject of a crime. According to this provision, Article 235 of the Criminal Code requires the age of the subject to be set at 16 years.

Article 235 of the Criminal Code determines the number of victims for criminal prosecution, which is unchanged and strict. The development of public relations shows that a law enforcement officer tortures, inhumanly treats and punishes the victim without initiating a criminal case and without recognizing him as a suspect in the case. For example, in May 2020, officers of the Coordination Department No. 4 of the Andijan City Department of Internal Affairs tortured with the use of force detained Citizen Alijon Abdukarimov in order to force him to confess. As a result, Alijon Abdukarimov died. It follows that the number of victims under Article 235 of the Criminal Code should be further expanded. The concept of a detainee should be included in the list of victims. Article 235 of the Criminal Code should be supplemented with the concept of a detained person to the concept of an administrative detainee.

The subjective side of a crime is understood as the external attitude of a person to his socially dangerous act [3, P.87]. The subjective side characterizes the psychological content of the crime, while closely related to the nature of the crime, that is, the objective side.

The subjective side of the crime includes the following elements:

1. A form of guilt; 2. Motive for the crime; 3. The purpose of the crime.

According to our study, if necessary sign of the subjective side of the crime is a guilt, then the motive and purpose of the crime are optional signs. Because guilt is the primary sign that reflects the subjective side of a socially dangerous act. The motive and purpose together induce the perpetrator to commit a crime, and the form of guilt is his attitude to a socially dangerous act. The disposition of article 235 of the Criminal Code contains the purpose of the crime, which is an optional feature of the direct subjective side: - the purpose of obtaining information; - the purpose of obtaining recognition; - the purpose of arbitrary punishment for the committed act; - the purpose of coercion to any action.

Unlawful obtaining of information is understood as putting pressure on participants in criminal proceedings in order to obtain information about the facts of a crime or the details of an incident. Information

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should be understood as information relating to a criminal case, and not any information. Illegal confession is the use of mental, physical or psychological pressure on a suspect, defendant or accused, as well as on another participant in a criminal case in order to testify that he committed a crime. Arbitrary punishment for a committed act consists in exerting influence on a person accused of committing a crime, guilty before the pronouncement and entry into force of a court verdict. Arbitrary punishment does not comply with the norms of the law, the personal interests of the accused prevail. Coercion to commit any action is coercion to commit an unlawful act against participants in criminal proceedings. For example, a search of the scene of an incident means forcing third parties to testify about the circumstances of a criminal case during an investigative action, forcing them to perform certain actions. Article 235 of the Criminal Code covers crimes against official and administrative order, as well as crimes against life and health. That is, the commission of a crime under Article 235 of the Criminal Code does not require additional qualification with crimes against life or health. In particular, the fact that the perpetrator was brought to justice under Article 235 of the Criminal Code does not require additional qualification of his actions under Article 104 of the Criminal Code or Article 110 of the Criminal Code. In part 2 of Article 235 of the Criminal Code of the Republic of Uzbekistan, aggravating circumstances are indicated. They are: a. the use of violence dangerous to life or health, or the threat of such violence; b. for any reason based on national, racial, religious or social discrimination; c. a group of persons; d. repeatedly e. against elderly or helpless persons, minors or women whose pregnancy is known to be at fault; f. in respect of two or more persons; g. use of substances that may endanger life or health;

h. for the purpose of falsifying (falsifying) evidence. The above grounds are the basis for prosecution under Part 2 of Art. 235 of the Criminal Code of Uzbekistan. Part 3 of Article 235 of the Criminal Code is the basis for qualification only in the event of causing serious bodily harm or other serious consequences to the victims of the crime. The Decree of the Plenum of the Supreme Court of the Republic of Uzbekistan “On judicial practice on certain issues of judicial practice in cases of crimes against traffic and road safety” focuses on the concept of other grave consequences: “Other severe consequences” include loss of life, prolonged failure of trains, ships or aircraft, destruction of surrounding houses and other structures (explosions, fires, collapses), etc. It should be taken in mind that the fact that two or more persons received injuries of moderate and / or severe severity as a result of violation of traffic rules or the use of vehicles is not a basis for qualifying an act on the basis of “other grave consequences”. For article 235 of the Criminal Code, a special subject is understood to be law enforcement officers and their other employees, and a general subject is sane persons who have committed a crime with the consent or testimony of officials conducting criminal proceedings. A crime is committed subjectively with direct intent, and the purpose of committing a crime is to obtain information, obtain a confession, arbitrary punishment for the committed act, coercion to commit any action. III. Conclusion In this article, as a result of studying the content of crimes related to the use of torture, we made the following conclusions: - the object of the crime is public relations aimed at ensuring justice, public relations associated with judicial and investigative processes; - the crime is committed by intimidation of beating, beating, torture or other illegal actions of mental, psychological, physical or other illegal influence;

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- the subject of the crime - a law enforcement officer or another person with his consent, a witness; - the crime is committed subjectively with direct intent, and the purpose of committing a crime is to gain information, confession against accused, arbitrary punishment for the committed act, coercion to commit any action. It is necessary to toughen the penalties provided for by the sanction of Article 235 of the Criminal Code of Uzbekistan. The purpose of criminal law is the protection of social relations enshrined in criminal law, the tightening of penalties for protection and thereby achieving the goal of its own criminal law. In connection with the growing number of cases of torture in judicial and investigative activities in our country and the issuance of acquittals, the legislature should tighten sanctions.