MITIGATION OF PUNISHMENT AND CRIMINAL DEFENSES IN CRIMINAL LEGISLATION OF CANADA AND REPUBLIC OF UZBEKISTAN (COMPARATIVE ANALYSIS)

The existing paper provides a comparative analysis of the criminal legislation of Canada and Uzbekistan in terms of consideration of the mitigation of punishment and criminal defenses. In detail, the present research provides an overall overview of the mitigation of sentence institute in accordance with the existing editions of the Criminal Code of Canada and the Criminal Code of the Republic of Uzbekistan, including the issues of 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 criminal complicity, including criminal defenses, institutions on the withdrawal (voluntary refusal) from the commission of an offence and innocent harm, etc. Pursuant to the results of the conducted analysis, similar and different sides of current criminal laws have been clarified. Decisions on the performed analysis and a final conclusion on the implementation of Canada‘s some criminal law norms to the criminal law of the Republic of Uzbekistan have been provided.

VOLUME 4 ISSUE №2 E-ISSN: 2181-1024 J U4,NIssue Volume E 22 0(2023) 23 TSUL Legal Report 1

MITIGATION OF PUNISHMENT AND CRIMINAL DEFENSES IN CRIMINAL LEGISLATION OF CANADA AND REPUBLIC OF UZBEKISTAN (COMPARATIVE ANALYSIS)

Islomov Bunyod Ochilovich, Independent Researcher of the University of Public Safety of the Republic of Uzbekistan, Senior Legal Adviser of “KDB Bank Uzbekistan” JSC ORCID: 0000-0001-8827-4900 e-mail: bunyodislomov@gmail.com

ARTICLE INFO Keywords: offence, sentencing, mitigating circumstances, aggravating circumstances, mental disorder, diminished responsibility, necessity, attempt, joint offenders, accessory, provocation, plea, child, youth, minor, probation, parole, pardon, amnesty.

ABSTRACT The existing paper provides a comparative analysis of the criminal legislation of Canada and Uzbekistan in terms of consideration of the mitigation of punishment and criminal defenses. In detail, the present research provides an overall overview of the mitigation of sentence institute in accordance with the existing editions of the Criminal Code of Canada and the Criminal Code of the Republic of Uzbekistan, including the issues of 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 criminal complicity, including criminal defenses, institutions on the withdrawal (voluntary refusal) from the commission of an offence and innocent harm, etc. Pursuant to the results of the conducted analysis, similar and different sides of current criminal laws have been clarified. Decisions on the performed analysis and a final conclusion on the implementation of Canada’s some criminal law norms to the criminal law of the Republic of Uzbekistan have been provided.

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Introduction The Canadian legal system is based on the English and French systems, as well as a combination of common law and civil law. Explorers and colonists brought these systems to Canada in the 17th and 18th centuries. After the Battle of Quebec in 1759, the country fell under English common law, with the exception of Quebec, which is subject to civil law. Québec is the only province with a Civil Code based on the French Code Napoléon (Napoleonic Code). In the rest of Canada, common law applies. The Criminal Code is also considered a code of laws and is applied throughout Canada [1]. Thus, the legal system of the Canadian province of Quebec can be attributed to mixed legal systems [2]. The Criminal Code of Canada was originally enacted in 1892 [3] (hereinafter the “Criminal Code of Canada”). The Criminal Code was repeatedly amended, including as part of a large-scale campaign to consolidate federal legislation in the period 1955-1985. As per the results of the reenactment of the Code with modernization of provisions existing from 1 of April 1955, all common law offences (other than for contempt of court) were abolished, as well as any offences created by the British Parliament or in effect under an Act or ordinance in any place before becoming part of Canada. The modern Criminal Code is part of the consolidated legislation of 1985, with amendments and additions adopted after that year [4]. Along with the norms of substantive criminal law, the Code includes the norms of criminal procedure, including those related to determining the jurisdiction of courts [5]. The Canada Evidence Act of 1927 [6] also plays an important role in regulating issues regarding criminal as well as civil proceedings. The Criminal Code of Canada [7] is one of the largest criminal law acts in the world and includes 849 sections.

The republic of Uzbekistan belongs to the Romano-Germanic legal system. Hereby, we continue our series of papers on the comparative research of criminal legislation of the countries, predominantly the members of the G-20 in framework of mitigation of punishment and criminal defences due to the process of arranging Criminal Code in the new edition perform under a special commission at General Prosecutor’s Office. For that matter, our existing PhD research work is dedicated to the major on mitigation of punishment with local and international background. In addition, we always consider mitigation of punishment with criminal defences as Criminal Code of Uzbekistan contains a number of mitigating factors connected with criminal defences in the list of mitigating factors. Materials and methods General scientific methods such as historical, comparative legal, logical (analysis and synthesis) and comprehensive research of scientific sources were used in the framework of the paper. And the materials should be considered as good due to obtaining from official sources. Research results Thus, we will perform the following comparative analysis of the institutions and procedures of the Criminal Code of Canada in the framework of the mitigation of punishment, as well as taking into account the criminal defences. Firstly, Criminal Code of Canada does not provide provisions on the application of existing criminal law in time as well as its retroactive effect. Detailed provisions on the application of criminal law in time also provide Criminal Code of Uzbekistan, enacted on September 22, 1994, and entered into force from 01 of April, 1995 (hereinafter the “Criminal Code of Uzbekistan”) [8], which states that a law that decriminalizes an act, mitigates a sentence or otherwise improves a person’s situation applies retroactively, i.e., it is

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applied to persons who committed the act in question before the entry into force of this law, as well as to persons who are serving their sentence or have served it with conviction not overturned. A law that criminalizes an act, abolishes a penalty, or otherwise worsens a person’s position may not apply retroactively (paragraphs 2 and 3 of the article 13).

Secondly, article 54 of the Criminal Code of Uzbekistan establishes the general principles of sentencing, according to which a person is punished if he is found guilty of committing a crime in accordance with the procedure established by law. The court imposes a penalty within the limits established by an article of the Special Part, which provides for liability for an offense committed, in accordance with the provisions of the General Part of this Code. When imposing punishment, the court takes into account the nature and degree of social dangerousness of the crime committed, its motives, the nature and degree of damage caused, the personality of the culprit, as well as circumstances mitigating punishment and aggravating it.

In its part, Criminal Code of Canada prescribes Purpose (section 718) and Principles of Sentencing. Fundamental principle contains that the punishment must be proportionate to the severity of the crime and the degree of responsibility of the offender (section 718.1). Moreover, pursuant to the section 718.2, a court that imposes a penalty also takes into account the following principles:

(a) the sentence should be increased or decreased in order to take into account all relevant aggravating or mitigating circumstances in relation to the crime or the perpetrator without limiting the generality of the foregoing:

(i) evidence that the offence was motivated by bias, prejudice, or hatred on grounds of race, national or ethnic origin, language, skin colour, religion, sex, age, mental or physical disability, sexual orientation, gender identity or gender expression, or for similar reasons, (ii) evidence that, in the commission of the crime, the perpetrator abused the intimate partner of the perpetrator or a member of the victim or the perpetrator’s family, (ii.1) evidence that the perpetrator abused a person under the age of eighteen when committing the crime, (iii) evidence that the perpetrator abused a position of trust or authority towards the victim when committing the crime, (iii.1) evidence that the crime had a significant impact on the victim, taking into account the age and other personal circumstances, including the health and financial situation of the victim, (iii.2) evidence that the crime was committed against a person who, in the performance of his duties and functions, provided health services, including personal care services, (iv) evidence that the crime was committed in favor of, on the instructions of, or in connection with a criminal organization, (v) evidence that the offence is a terrorist offence, (vi) evidence that the offence was committed while the offender was subject to a conditional sentence under Section 742.1 or was released on parole, statutory release or unaccompanied temporary absence under the Corrections and Conditional Release Act; and (vii) evidence that the commission of the crime led to the fact that another person was prevented from using health services, including personal care services, is considered an aggravating circumstance; (b) The penalty should be comparable to the penalties imposed for similar offences in similar circumstances; (c) If successive penalties are imposed, the total penalty should not be unreasonably long or harsh; (d) an offender should not be deprived of liberty where less severe sanctions

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may be appropriate in the circumstances; and (e) all available sanctions, other than deprivation of liberty, appropriate in the circumstances and consistent with the harm inflicted on the victims or the community, should be considered for all offenders, with particular attention to the circumstances of offenders who are indigenous. Furthermore, if a legal provision prescribes a penalty for a crime, the penalty to be imposed, subject to the restrictions prescribed in the legal provision, is at the discretion of the court convicting a person who committed the crime, but no penalty is a minimum penalty unless it is declared the minimum penalty, as subsection 718.3(2) says. Thirdly, although Criminal Code of Canada prescribes the list of aggravating factors only (sections 130.1, 163.1(4.3), 264(4), 269.01(1), 286.2(6), 320.22, 348.1, 380.1(1), 380.1(1.1), 610(1), subsection 718.2(a)), Criminal Code of Uzbekistan stipulates the list of mitigating factors (paragraph 1 of the article 55) as well as aggravating factors (paragraph 1 of the article 56). Mitigating factors are called as “circumstances mitigating the punishment” at the Criminal Code of Uzbekistan and “mitigating circumstances” at the Criminal Code of Canada (section 718.2). Moreover, Criminal Code of Canada uses the term “non-mitigating factors” in the subsection 380.1(2). In our opinion, by establishing the list of aggravating factors only, legislative authority of Canada provides unlimited authority to courts to accept and take into account any factor as mitigating on sentencing. At same time, Criminal Code of Canada establishes aggravated composition of offences as aggravated assault (section 268), aggravated assault of peace officer (section 270.02) as well as aggravated sexual assault (section 273). Nevertheless, a rare mention on mitigating circumstances are appeared in Criminal Code of Canada as follows:

1. Non-mitigating factors (subsection 380.1(2)). When imposing a penalty for a criminal offense under § 380 (fraud), § 382 (fraudulent manipulation of stock exchange transactions), § 382.1 (prohibited insider trading) or § 400 (falsification of prospectuses, etc.), the court may not take into account the employment, professional skills, status, or reputation of the perpetrator in society as mitigating circumstances if these circumstances were significant for the commission of the crime, contributed to it or were used in the commission of the crime. 2. Minutes of the proceedings (subsection 380.1(3)). The court arranges for the aggravating and mitigating circumstances that it took into account when determining the penalty to be included in the protocol. 3. Effect of the plea on the penalty (subsection 612(3)). If a plea of justification is raised and the accused is convicted, the court may take into account in the sentencing whether the guilt of the accused is aggravated or mitigated by the plea. 4. Other principles of sentencing (subsection 718.2(a)). A court imposing a sentence also takes into account the following principles: a sentence should be increased or decreased in order to take into account all the relevant aggravating or mitigating circumstances related to the offense or the perpetrator, and, without limiting the generality of the foregoing, etc. 5. Punishment for subsequent offenses remains unaffected (subsection 748.2(4)). In its part, paragraph 1 of the Article 55 of Criminal Code of Uzbekistan contains the following list of mitigating factors: a) voluntary renunciation, active repentance, or assistance in the detection of crimes; b) voluntary elimination of the damage; c) committing a crime due to serious personal, family, or other circumstances; d) commission of a criminal offence under duress or due to financial, official, or other dependencies;

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e) committing a crime in affect caused by violence, serious insult or any other unlawful act of the victim; f) committing an offense that goes beyond the necessary self-defense, an extreme emergency, the infliction of harm in the process of arresting a person who has committed a socially dangerous act or a justifiable professional or economic risk; g) commission of a crime by a minor; h) commission of a crime by a pregnant woman; i) committing a crime under the influence of unlawful or immoral behavior of the victim.

However, unlike the Criminal Code of Canada, Criminal Code of Uzbekistan establishes as a rule that, in the process of determining a penalty, a court may recognize a mitigating factor not envisaged by the foregoing list (paragraph 2 of the article 55) as well as a mitigating factor envisaged by an Article of the Special Part of this Code as an element of offence composition that shall not be taken into account throughout determining a penalty (paragraph 3 of the article 55).

According to subsection 730 (1) of the Criminal Code of Canada, an accused who is not an organization, pleads guilty to an offence or is found guilty of an offence may be discharged absolutely or subject to the conditions set out in a probation order under subsection 731 (2). On the issuance of the probation order.

According to the foregoing provisions, the list of mitigating factors in Criminal Code of Uzbekistan is not exhaustive, and the absence of an existing list in Criminal Code of Canada, we can come to the conclusion that the judges in Canada as well as in Uzbekistan are provided with the right to wide judicial discretion.

Along with the mitigating factors, Criminal Code of Uzbekistan also stipulates “circumstances considerably decreasing a degree of social danger of a committed offence” and “exceptional cases”. So, pursuant to the article 57 (imposition of lighter penalty):

A court, taking into account circumstances considerably decreasing the degree of social danger of a committed offence, may, in exceptional cases, impose a penalty that is lower than the lower limit provided for in an Article of the Special Part of this Code for a relevant criminal offense, or another milder penalty not provided for in an appropriate Article (paragraph 1). For the same reasons, a court may refrain from imposing a mandatory additional punishment provided for in an Article of the Special Part of this Code (paragraph 2). Circumstances that significantly reduce the degree of social danger of a committed criminal offense may be recognized as circumstances that, as a whole, characterize an act, the personality of a guilty person, the degree and form of his guilt, his conduct before and after the criminal offense, the reasons and contributory circumstances of the criminal offense (paragraph 3).

Moreover, the Criminal Code of Canada prescribes provisions on criminal liability for provocation (section 232).

The Criminal Code of Canada as well as the Criminal Code of Uzbekistan does not provide legal definitions for the terms “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). We should note the difference between characters of these articles as provisions of article 57 belong to judge’s sole discretion, while the articles 57-1 and 57-2 have mandatory character.

Each foregoing separate rule on mitigation of punishment on the process of

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sentencing will be considered alternately. In this case as well as in present paper, we are not considering the mitigation of punishment in the process of its execution, which is serving a sentence. Thus, Criminal Code of Uzbekistan provides the succeeding rules on mitigation of punishment, except for the foregoing provisions on the imposition of a 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 mitigating circumstances under Article 55 paragraph 1 subparagraphs “a” and “b” of this Code and if there are no aggravating circumstances under Article 56 paragraph 1 of this Code, the penalty may not exceed two thirds of the maximum penalty provided for in the relevant article of the Special Part of this Code. This rule does not apply to persons who have committed crimes related to premeditated murder in aggravating circumstances (Article 97, paragraph 2) and terrorism (Article 155, paragraph 3). 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 February 18, 2021: The duration or amount of punishment for offenses for which a plea agreement has been concluded may not exceed half of the maximum punishment provided for in the relevant Article (Paragraph) of the Special Part of this Code. We know about regulating the procedure of plea institution with Criminal Procedure Code of Uzbekistan, enacted on September 22, 1994, and entered into force from 1st of April, 1995 [9] (Chapter 62-1, articles 586- 1 – 586-10), as well as the composition of punishment in this case sets by Criminal Code of Uzbekistan (article 57-2) only. As Criminal Code of Canada combines criminal law and criminal procedure law norms, provisions on plea are contained accordingly (sections 606-613).

Regarding the effect of plea on punishment, pursuant to the paragraph 3 of the article 612 of Criminal Code of Canada, where a plea of justification is pleaded and the accused is convicted, the court may, in pronouncing sentence, consider whether the guilt of the accused is aggravated or mitigated by the plea. Additionally, any ground of defence for which a special plea is not provided by this Act may be relied on under the plea of not guilty (article 613). Furthermore, it should be recognized that there are many differences in the legal content of this institution in legislation of Uzbekistan and Canada, which may be considered the subject of one more research paper. Fifthly, Criminal Code of Uzbekistan pays separate attention to the issues of the 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 December 7, 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 of fourteen, sixteen, and eighteen years, 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 privilege for minors as: 1. When considering the question of whether a person can be recognized as a particularly dangerous recidivist, court convictions for crimes committed by the person under the age of eighteen, as

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well as convictions that were canceled or canceled within the framework of the procedure established by law, are not taken into account (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. Criminal Code of Canada provides succeeding definitions relating to a minor’s age: a) a newborn child is a person who is not yet one year old (section 2); b) no one may be convicted of an act or omission committed when he has not yet reached the age of twelve (§ 13); c) “witness” means a person who testifies verbally under oath or by affidavit in a judicial proceeding, regardless of whether he is fit to testify or not, and includes a child of tender age who testifies but does not testify under oath because, in the opinion of the presiding person, he does not understand the essence of the oath (section 118); d) in the section 153 on sexual exploitation, a young person is a person who is sixteen or more but not yet eighteen years old (subsection 153(2)); e) for the purposes of the section 172 on corrupting children, a child is a person who is not yet eighteen years old, or seems to be (subsection 172(3)); f) everyone is legally obliged (a) to provide for the livelihood of a child under the age of sixteen as a parent, foster parent, guardian, or head of the family (subsection 215(1)); g) anyone who unlawfully exposes or endangers a child under the age of ten so that his life is endangered or may be endangered or his health is permanently damaged, (a) is guilty of a criminal offense that is threatened with imprisonment for up to five years, or (b) is guilty of a criminal offense that is punished in a fast-track procedure (section 218);

h) unborn child (section 238); i) adult has the meaning specified in subsection 2(1) of the Youth Criminal Justice Act (section 487.04); j) young person is a person stipulated in subsection 2(1) of the Youth Criminal Justice Act or subsection 2(1) of the Young Offenders Act, as the case may be (section 487.04); k) a person who is not yet fourteen years old (sections 150.1, 171.1, 172.1, 281); l) a person who is not yet sixteen years old (sections 150.1, 151, 152, 155, 160, 161); m) a person who is not yet eighteen years old (sections 163.1, 170, 171, 171.1, 279.011) etc. Pursuant to subsection 718.3(6) of the Criminal Code of Canada, cumulative punishments for youth’ and, in general, youth’ criminal responsibility is regulated along with the Criminal Code of Canada by the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985 [10] and Youth Criminal Justice Act, SC 2002, c 1 [11]. The Youth Criminal Justice Act is the law that governs the Canadian juvenile justice system. It applies to young people who are at least 12 but not yet 18 years old and who are accused of committing crimes. In the more than one hundred years that there have been juvenile justice laws in Canada, three juvenile justice laws have been enacted: the Juvenile Delinquents Act (1908-1984), the Young Offenders Act (YOA) (1984-2003), and the Youth Criminal Justice Act (YCJA) (2003-present) [12]. Insofar as this Youth Criminal Law does not contradict or is excluded, the provisions of the Criminal Code, with the amendments that the circumstances require, apply to crimes that are alleged to have been committed by young people (section 140 of the Youth Criminal Justice Act). Youth Criminal Justice Act contains 141 sections and provides succeeding definitions:

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Adult: a person who is neither a teenager nor a child; Child: a person who is less than twelve years old or, until proven otherwise, appears to be less than twelve years old; Juvenile: a person who is twelve years of age or older, but not yet eighteen years of age, or who appears to be until proven otherwise, and, if the context requires, a person charged under this Law with having committed an offense while he was a juvenile, or who is found guilty of an offense under this Law; Juvenile Court means a juvenile court within the meaning of Section 13; Juvenile Penalty: a penalty imposed under Sections 42, 51, 59 or any of Sections 94 to 96, including an affirmation or modification of that penalty; Youth worker: any person appointed or designated by an act of the legislature of a province or by the Lieutenant Governor in the Council of a province or his representative to perform in that province, either generally or in a particular case, the duties or functions of a youth worker in accordance with this Act, etc., whether under the designation of youth worker or probation officer or under another designation. In addition, in accordance with section 38(3) of the Youth Criminal Law Act, the Youth Court takes into account the following when determining a youth sentence: (a) the degree of involvement of the adolescent in the commission of the crime; (b) the harm inflicted on the victims and whether it was intentional or reasonably foreseeable; (c) the reparation made by the young person to the victim or to the community; (d) the time the young person has spent in custody as a result of the offence; (e) the previous guilty verdicts of the young person; and (f) any other aggravating and mitigating circumstances relating to the young person or the offence that are relevant to the purpose and principles of this section.

Additionally, section 745.3 of the Criminal Code of Canada prescribes conditions in respect of persons under the age of sixteen who committed a murder. Particularly, if the jurors find the defendant guilty of first-degree or second-degree murder and if the defendant was not yet sixteen years old at the time of the commission of the act, then the judge presiding over the trial asks the jurors the following question before their dismissal. They have found the defendant guilty of first-degree murder (or second-degree murder), and the law requires that I now announce a life sentence against the defendant. Would you like to make a recommendation regarding the length of the custodial sentence that the accused must serve before he can be released on parole? You are not obliged to make a recommendation, but if you do, your recommendation will be taken into account by me when I determine the term of imprisonment from five to seven years, which the defendant must serve under the law before he is eligible for release on parole. Moreover, subsection 746.1(3) sets that, in the case of a person convicted of first- or second-degree murder who was under the age of eighteen at the time of the commission of the act and who, according to this law, is sentenced to life imprisonment without the right to parole for a certain number of years, until the end of the entire term of imprisonment that the person is obliged to serve without the right to parole, with the exception of one fifth, (a) under the Corrections and Conditional Release Act, probation cannot be granted for one day; (b) no absence without escort may be authorized under that Act or the Prisons and Reformatories Act; and (b) no unaccompanied absenteeism may be authorized under this Act or the Prisons and Reformatories Act; and c) except with the approval of the Canadian Parole Board, no absence with accompaniment that is not for medical

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reasons or to participate in a judicial proceeding or investigation may be authorized under any of these laws.

Furthermore, Section 16.1 of the Canada Evidence Act [6] states that a person under the age of fourteen is presumed to be able to testify. A proposed witness under the age of fourteen may not take an oath or make a solemn declaration, despite a provision of a law that prescribes an oath or solemn declaration.

In this regard, in our view, Criminal Code of Canada provides not less detailed provisions on minor’s criminal liability than the relevant Code of Uzbekistan.

Sixthly, the rules on imposition of punishment for an unсompleted offence under the Criminal Code of Canada are frequently provided for attempted offence, although the provisions on preparation to crime is prescribed too. In particular, anyone who, with the intention of committing a crime, does or omits to do something in order to realize this intention, is guilty of attempting to commit the crime, regardless of whether the commission of the crime was possible in the circumstances or not (subsection 24(1)). The question of whether or not an act or omission of a person who has the intention to commit an offense is a mere preparation for committing the offense and is too remote to constitute an attempt to commit the offense is a question of law (subsection 24(2)).

The questions on imposition for attemp are provided along with responsibility of accessories. Especially, section 463 of the Criminal Code of Canada provides the succeeding provisions on imposition of punishment for attempted offence and accessory:

Unless the law expressly states otherwise, the following provisions apply to persons who attempt to commit a crime or who provide assistance in committing a crime:

(a) anyone who attempts to commit a criminal act for which the accused can be sentenced to life imprisonment in the event of a conviction, or who provides assistance in committing such an act, is guilty of a criminal act and is punishable by imprisonment for a maximum of fourteen years; (b) anyone who attempts to commit a criminal act for which the accused is threatened with imprisonment for up to fourteen years in the event of a conviction, or who contributes to it, is guilty of a criminal act and is threatened with imprisonment for half of the maximum penalty provided for a person guilty of the relevant act; (c) anyone who attempts to commit an act threatened with punishment or who assists in the commission of such an act is guilty of an act threatened with punishment; and (d) anyone who attempts to commit an offence for which he can be charged or who is aiding and abetting the commission of an offence for which he can be punished in a fast-track procedure, (i) is guilty of an indictable offence and is punished with imprisonment up to half of the maximum penalty for which a person guilty of this offence can be convicted, or (ii) is guilty of an offence for which he is convicted in a fast-track procedure.

Moreover, section 464 of the Criminal Code of Canada provides the ensuing provisions on the imposition of punishment for counselling offence that is not committed:

Unless the law expressly provides otherwise, for persons advising other persons to commit crimes, the following provisions apply:

(a) anyone who advises another person to commit a criminal act, if the act is not committed, is guilty of a criminal act and is threatened with the same punishment as a person who tries to commit this act, and (b) anyone who incites another person to commit a crime to be punished in a fast-track procedure is guilty of a crime to be punished in a fast-track procedure if the crime is not committed.

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In its turn, Criminal Code of Uzbekistan provides much more detailed rules of criminal liability to prepare for offence and criminal attempt (article 25) as well as the following 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, and 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).

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

Nevertheless, the Canadian Criminal Code contains provisions on an agreement on reparation–an agreement between an organization accused of committing a crime and a prosecutor to suspend proceedings related to this crime if the organization complies with the terms of the agreement, which relate to the promotion of voluntary disclosure of misconduct and reparation for harm caused to victims or the community (sections 715.3 and 715.31).

Eighthly, Criminal Code of Canada as well as Criminal Code of Uzbekistan provide provisions on imposition of punishment for joint offences committed in participation. In particular, as per of Criminal Code of Canada contains the following provisions with respect to joint offence:

1. A criminal offense involves who (a) the offence is actually committed; (b) does or omits to do something to help someone commit the offence, or (c) assists someone in the commission of the crime (subsection 21(1)).

2. As for the common intention, if two or more persons have the common intention to carry out an illegal project and support each other in this, and one of them commits an offense in the implementation of the common project, each of them, who knew or should have known that the commission of the offense would be a probable consequence of the implementation of the common project, is involved in this offense (subsection 21(2)).

II. Persons advising on criminal offences:

1. If a person advises another person to participate in a crime, and subsequently this other person is involved in this crime, then the person who advised on the crime is involved in this crime, even if the crime was committed in a different way than the one that was advised (subsection 22(1)).

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2. Anyone who advises another person to take part in a crime is involved in any crime committed by the other person as a result of the consultation, and the person who advised knew or should have known that it could be committed as a result of the consultation (subsection 22(2)).

3. Advice also includes instigating, prompting, or inciting (subsection 22(3)).

III. Aiding and abetting the crime (subsection 23(1)). Aiding and abetting a crime is one who, knowing that a person was involved in the crime, receives, comforts, or helps that person so that he can escape.

IV. If a party cannot be convicted (section 23.1). For reasons of legal certainty, §§ 21 to 23 also apply to an accused person if the person to whom the accused provides assistance, which he advises or provides, or which he receives, comforts or supports, cannot be convicted of the crime.

V. Aiding and abetting murder (section 240). Anyone who contributes to the murder is guilty of a criminal offense and is punished with life imprisonment.

VI. With regard to the connection of defendants in certain cases, anyone accused of aiding and abetting a crime can be charged, regardless of whether the main culprit or another person involved in the crime has been charged or convicted, or whether he is available to justice or not (section 592).

VII. Regarding theft and possession, if a defendant is accused of aiding and abetting the commission of a crime, then the evidence of the conviction or dismissal of another person for the crime against the defendant is admissible and, in the absence of evidence to the contrary, is considered evidence of the commission of the crime (subsection 657.2(2)).

VIII. If several persons commit the same crime together and if each of them is sentenced to pay an amount to an injured party after their conviction, then only an amount equal to the value of the destroyed or damaged property or the amount of the damage caused, if any, plus the costs, shall be paid to the injured party; the rest of the amount payable shall be applied in accordance with the rules on the imposition of other penalties provided for by law (section 807) etc.

In process of observing the imposition of punishment for joint offenders, we have not found separate conditions on mitigation of punishment for every accessory or another participant.

Hovewer, Criminal Code of Uzbekistan provides the rules on mitigation of punishment for participants. Particularly, in accordance with the paragraph 4 of the article 58 of Criminal Code of Uzbekistan, when imposing a sentence for a crime committed jointly, the court takes into account the nature and degree of participation of each of the guilty persons in the crime. Mitigating and aggravating circumstances related to the personality of each accomplice are taken into account by the court when imposing a sentence on this accomplice. Furthermore, Criminal Code of Uzbekistan provides universal provisions on participiant’s criminal liability (articles 27-31) which are applicable for any offence.

Ninth, Part I of the Criminal Code of Canada as well as the General Part of the Criminal Code of Uzbekistan provides a number of criminal defenses, exluding for criminal liability. In particular, Criminal Code of Canada sets the following circumstances exluding criminal liability in cases of complying with certain conditions:

1. Defence of mental disorder (section 16). No one is criminally responsible for an act or omission that he committed while suffering from a mental disorder that made him unable to judge the nature and quality of the act or omission or to know that it was wrong (subsection 16(1)). The burden of proving that a defendant suffers from a mental disorder that relieves him of his criminal responsibility lies with the party who raises the question (subsection 16(3)).

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The Criminal Code of Uzbekistan (article 18) considers the state of “mental incapacity” as a criminal defense excluding criminal liability, but additionally, Criminal Code of Uzbekistan implies the possibility of applying compulsory medical measures.

Although Criminal Code of Canada contains separate Part XX.1 (sections 672.1-672.95) on the questions regarding mental disorder, mostly including the norms of criminal procedure, this Code does not consider the commission of an offence in a state of diminished responsibility. As opposed to Criminal Code of Canada, 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. We should note that provisions on criminal liability of the persons commited an offence in a state of diminished responsibility have been amended to Criminal Code recently by the Law of the Republic of Uzbekistan No LRU-567 dated September 12, 2019 “On supplements and amendments to some legislative acts of the Republic of Uzbekistan in connection with the improvement of the system of psychiatric care”.

2. Compulsion by threats (section 17). A person who commits an offense under duress by being threatened with death or bodily injury by a person present at the commission of the offense is excused from committing the offense if he believes that the threats are carried out, and if he is not involved in a conspiracy or association through which he is under duress; however, this section does not apply if the crime committed is treason or treason, murder, piracy, attempted murder, sexual assault, sexual assault with a weapon, threatening a third party or causing bodily harm, serious sexual assault, forcible abduction, hostage taking, robbery, assault with a weapon or causing bodily harm, serious bodily harm, unlawful causing bodily harm, arson or a criminal offense under sections 280 to 283 (abduction and deprivation of liberty of Young people).

Furthermore, it is not suspected that a married person who commits an offense does it under duress only because the offense is committed in the presence of his spouse (section 18 of Criminal Code of Canada).

In its turn, Criminal Code of Uzbekistan prescribes the commission of an offence under duress or by virtue of material, official or other dependence as a circumstance, mitigating the punishment (sub-paragraph “d” of the paragraph 1 of article 55), not a criminal defence.

It should be noted that ignorance of the law by a person who commits an offense is not an excuse for committing this offense (section 19 of the Canadian Criminal Code).

3. Persons acting under a power of attorney (section 25). Anyone who is obliged or authorized by the law to do something within the framework of the administration or enforcement of the law:

(a) as a private person, (b) as a police officer or public servant, (c) in support of a police officer or official, or (d) by virtue of his office, if he acts on the basis of reasonable considerations, he is entitled to do what he is obliged or authorized to do, and to use as much force as is necessary for this purpose (subsection (1)).

In this regard, Criminal Code of Canada prescribes the conditions when the persons stipulated in subsection 25(1) are protected (subsection 25(4)) and not protected (subsection 25(3)) by law. A peace officer has the right to use force against an inmate fleeing from a correctional institution with the intention or probability of causing death or serious bodily injury (subsection 25(5)).

It should be noted that everyone who is authorized to use force under the law is criminally responsible for any excess of this force, depending on the quality

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and nature of the act that constitutes the excess (section 26). Moreover, everyone is entitled to use as much force as is reasonably necessary to prevent the commission of a crime (section 27). The use of force on board an aircraft (Section 27.1), the arrest of a false person (Section 28), the prevention of a breach of the peace (Section 30), arrest for breach of the peace (Section 31) and the use of force to suppress riots (Section 32) are also provided for as justified acts in the Canadian Criminal Code. Consecutively, Criminal Code of Uzbekistan sets criminal defense as the infliction of harm in the arrest of a person who has committed a socially dangerous act (articles 35, 39). The commission of an offence in excess of the limits of infliction of injuries during the arrest of a person who has committed a socially dangerous act is established as circumstance, mitigating the punishment (sub-paragraph “f” of the paragraph 1 of article 55). 4. Defence of Person (section 34). A person does not commit an offence if: (a) they legitimately believe that violence is being used against you or another person or that a threat of violence is being made against you or another person; (b) the act constituting the offence is committed for the purpose of defending or protecting oneself or another person from such use or threat of violence; and (c) the act committed is appropriate in the circumstances (Subsection 34(1)). When determining whether the committed act is appropriate in the circumstances, the court takes into account the relevant circumstances of the person, other parties, and the act, including, but not limited to, the following factors: (a) the nature of the use of force or threat; (b) the extent to which the use of force was imminent and whether other means were available to respond to the possible use of force;

(c) the role of the person in the incident; (d) whether a party involved in the incident used a weapon or threatened to use a weapon; (e) the size, age, gender, and physical abilities of those involved in the incident; (f) the nature, duration, and history of the relationship between those involved in the incident, including previous use or threat of violence and the nature of such use or threat of violence; (f.1) any history of interaction or communication between the parties involved in the incident; (g) the nature and proportionality of the person’s response to the use or threat of violence; and (h) whether the act was committed in response to a use or threat of violence that the person knew was lawful (Subsection 34(2)). Besides that, subsection 34(3) provides the cases when the abovementioned acts cannot be considered as defence. 5. Defence of Property (section 35). In accordance with subsection 35(1), a person is not guilty of an offence if: (a) they either have a reasonable belief that you are in peaceful possession of property, or you are acting on behalf of a person you have a reasonable belief is in peaceful possession of property, or you are lawfully assisting that person; (b) they have reasonable grounds to believe that another person: (i) is about to enter the property, has just entered, or has entered it without being legally entitled to do so, (ii) is about to take possession of the property, is doing so or has just done so, (iii) is about to damage, destroy or render unusable the property, or has already done so, (c) the act which fulfils the offence is committed for the purpose of, (i) prevent the other person from entering the property or remove them from the property,

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(ii) prevent the other person from taking, damaging, destroying, or rendering unusable the property or from recovering the property from that person, (d) the act committed is appropriate in the circumstances.

And subsections 35(2) and 35(3) prescribe the cases when the abovementioned acts cannot be considered as defence.

In sequence, Criminal Code of Uzbekistan stipulates criminal defences, exluding criminal liability as self-defence (articles 35, 37) and extreme necessity (articles 35, 38). Thereof, commission of an offence in excess of the limits of self-defense and extreme necessity is considered as circumstance, mitigating the punishment (sub-paragraph “f” of the paragraph 1 of article 55).

6. Correction of child by force (section 43). Pursuant to the Canadian Criminal Code, any teacher, parent or person acting in place of a parent is entitled to use violence as a corrective measure against a student or child in his care, respectively, if the violence does not go beyond what is appropriate in the circumstances.

7. Surgical operations (section 45). Each person is protected from criminal liability for performing a surgical intervention on a person in favor of this person, in case:

(a) the operation is carried out with reasonable care and expertise; (b) the implementation of the operation is appropriate, taking into account the state of health of the person at the time of the operation and all the circumstances of the case.

Additionally, Criminal Code of Canada directly sets that commission an offence in state of self-induced intoxication is not considered a defence (section 33.1). And similar condition provides article 19 of the Criminal Code of Uzbekistan, according to which a person who has committed a crime under the influence of alcohol, narcotic drugs, psychotropic substances, or other substances that affect the human mind and will is not exempt from criminal responsibility. Such a state of affairs cannot be used as a reason for recognizing the person as insane. Moreover, commission of an offence under intoxication by narcotics, alcohol, psychotropics, or other substances affecting human will and intellect may be determined as circumstance aggravating the punishment (sub-paragraph “m” of the paragraph 1 of article 56).

In its turn, the Criminal Code of Uzbekistan provides for such criminal defenses, excluding the criminality of the act as the minor nature of an act; extreme necessity; self-defense; execution of an order or other duty; causing harm during the detention of a person who committed a socially dangerous act; justified professional or economic risk; commission of an act as a result of physical or mental coercion or threat (article 35), and some of them are not provided in the Criminal Code of Canada.

Moreover, Criminal Code of Uzbekistan prescribes the defence of such innocent harm. An act is recognized as having been committed innocently if the one who committed it did not know, should not have, and could not have realized the social dangerousness of his act, or did not foresee the socially dangerous consequences of his act and, according to the circumstances of the case, should not have foreseen and could not have foreseen (article 24).

Furthermore, if Criminal Code of Uzbekistan provides the mitigating factors connected with criminal defences such commission of an offence in excess of necessary extreme necessity, self-defense, justifiable professional or economic risk, infliction of injury when apprehending a person having committed a socially dangerous act (sub-paragraph “f” of the paragraph 1 of article 55) which may mitigate the punishment only.

Tenths, Criminal Code of Uzbekistan does not contain provisions on the criminal

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liability of legal persons. But we hope it will be prescribed in the new edition of Criminal Code, which is on arrangement process by a special commission and procedure on mitigation of punishment for legal persons have been provided by us accordingly. We should note that currently criminal codes of some of the states-members as Moldova (articles 21, 63, 64, 73–74) [13], Ukraine (Chapter XIV.1: articles 96.3-96.11) [14] and Azerbaijan (Chapter 15-2: articles 99⁴–99ꝰ-моддалар) [15] of Commonwealth of Independent States - an organization that includes most of the former republics of the USSR and Uzbekistan (overal 11 member states) as well despite belonging to the same Romano-Germanic legal system, have already implemented institution on “criminal liability of legal persons”. Moreover, none of the stipulated countries contains separate procedure of mitigation of punishment with respect to legal persons.

In its turn, Criminal Code of Canada considers corporations as subject of criminal liability. Definition in section 2 of “every one”, “owner” and “person”, includes “public bodies, bodies corporate, societies, and companies”. However, determining whether a corporation has committed a prohibited act and whether a corporation has the requisite mental state is far more complicated than for an individual. This is not single issue in corporates criminal liability. To improve the criminal liability of corporations and fix any issues as noted above, Bill C-45 - Amendments to the Criminal Code Affecting the Criminal Liability of Organizations had been arranged and discussed accordingly [16]. At the same time, the leading case on corporate criminal liability in Canada is Canadian Dredge and Dock Co. v. The Queen [1985] 1 S.C.R. 662, in which the Supreme Court of Canada accepted the “identification” doctrine as the basis for liability [17]. And by virtue of belonging to the Romano-Germanic legal system, courts in Uzbekistan does not govern by legal precedent.

Elevenths, Criminal Code of Uzbekistan sets out provisions on pardon and amnesty, institutions that may provide lightness to the accused. On the ground of an act of amnesty or pardon, a convicted person may be fully or partially released from the main and unfulfilled additional punishment, or released from punishment on parole, or the unserved part of the punishment may be replaced by a lighter punishment. If a person to whom a conditional early release from punishment has been applied or the unserved part of the punishment has been replaced by a lighter punishment, on the ground of an act of amnesty or pardon, commits a new intentional crime before the expiration of the unserved term, the court shall impose punishment on him according to the rules provided for in Article 60 of the existing Code (paragraph 1 and 2 of the article 76). A criminal record (retention) may be removed on the ground of an act of pardon or an act of amnesty (paragraph 5 of the article 79). In addition, a person who has committed a crime may be released from criminal liability on the ground of an amnesty act (article 68). Issues arising in the process of implementation of the institutions above are regulated by Resolutions of the Plenum of the Supreme Court accordingly [18, 19].

Constitution of Uzbekistan clarifies authorities on issuing amnesty and pardon. Adoption of acts of amnesty on the proposal of the President of the Republic of Uzbekistan is considered the exclusive authority of the Senat of the Oliy Majlis – higher chamber of parliament. In its turn, the president of Uzbekistan performs pardons for persons convicted by the courts of the Republic of Uzbekistan (articles 80 and 93) [20]. The full procedure on pardon is provided by the Regulation on the procedure for the performing of pardon in the Republic of Uzbekistan, approved

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by Decree of the President of the Republic of Uzbekistan dated May 8, 2018 no. UP 5439 [21]. In addition, Criminal Code of Canada provides another legal content to amnesty institution, different in Criminal Code of Uzbekistan. More specifically, the Canadian Code uses the term “amnesty period” in the Part on firearms and other Weapons. Pursuant to subsection 117.14 (1), the Governor in Council may, by order, declare any period as an amnesty period with respect to any weapon, prohibited device, prohibited ammunition, explosive substance or component or part designed exclusively for use in the manufacture of or assembly of an automatic firearm. Purposes of amnesty period include permitting any person in possession of anything to which the order relates to do anything provided in the order, including, without restricting the generality of the foregoing, delivering the thing to a peace officer, a firearms officer, or a chief firearms officer, registering it, destroying it, or otherwise disposing of it, etc. No person who, during an amnesty period declared by an order made under the existing Code and for a purpose described in the order, does anything provided for in the order is, by reason only of the fact that the person did that thing, guilty of an offence under this Part. Any proceedings taken under this Part against any person for anything done by the person in reliance on this section are nullity. Section 748 of Criminal Code of Canada sets out the procedure on issuance of pardon. So, the authority to extend the royal mercy to a person who is sentenced to imprisonment under the authority of an Act of Parliament, even if the person is imprisoned for failure to pay money to another person belongs to the crown. There are 2 types of pardons that are prescribed. The Governor in Council may grant a free pardon or a conditional pardon to any person who has been convicted of an offence. Where the

Governor in Council grants a free pardon to a person, that person shall be deemed thereafter never to have committed the offence in respect of which the pardon is granted. Moreover, no free pardon or conditional pardon prevents or mitigates the punishment to which the person might otherwise be lawfully sentenced on a subsequent conviction for an offence other than that for which the pardon was granted. Twelfth, Criminal Code of Canada (subsections 743.6(1) - 745.51 (1)) and Uzbekistan (article 73) set out a procedure for parole. Pursuant to subsection 743.6(1) of Canada’s Criminal Code, notwithstanding subsection 120(1) of the Corrections and Conditional Release Act, where an offender receives, on or after November 1, 1992, a sentence of imprisonment of two years or more, including a sentence of imprisonment for life imposed otherwise than as a minimum punishment, on conviction for an offence set out in Schedule I or II to that Act that was prosecuted by way of indictment, the court may, if satisfied, having regard to the circumstances of the commission of the offence and the character and circumstances of the offender, that the expression of society’s denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less. Moreover, procedure of applying parole with respect to a person who was under the age of eighteen and sixteen at the time of the commission sets out by sections 745.1 and 745.3 of Criminal Code accordingly. In its turn, in accordance with Criminal Code of Uzbekistan, persons sentenced to imprisonment, referral to a disciplinary unit, job limitation, restriction of liberty, or correctional labor may be granted conditional early release from serving

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a sentence (paragraph 1 of article 73). A person may also be released from an unfulfilled additional punishment. Conditional early release from serving a sentence may be applied to a convicted person if the requirements of the established regime for the types of punishments specified in paragraph one of the existing article are met and a conscientious attitude to work is met. Conditional early release from punishment may be applied after the convicted person has actually served: a) at least one third of the sentence imposed by the court for a crime that does not pose a great public danger or a less serious crime; b) at least half of the sentence imposed by the court for a serious crime, as well as an intentional crime, if the person was previously sentenced to imprisonment for an intentional crime; c) at least two-thirds of the sentence imposed by the court for a particularly serious crime, as well as to a person who was previously released from punishment on parole or whose punishment was replaced by a milder one and committed a new intentional crime during the unserved part of the sentence. Conditional early release from punishment does not apply to: a) a person sentenced to a life or long term of imprisonment; b) a particularly dangerous recidivist; c) the organizer, members of an organized group, or criminal community; d) a person convicted for intentional murder under aggravating circumstances, rape or forcible satisfaction of sexual needs in an unnatural form in relation to the victim, known to the guilty person under the age of fourteen, crimes against the Republic of Uzbekistan, the peace and security of mankind, smuggling of nuclear, chemical, biological, and other types of weapons of mass destruction, materials, and equipment, which can obviously be used when creating it.

If a person to whom conditional early release has been applied commits a new intentional crime during the unserved part of the sentence, the court imposes punishment according to the rules provided for in Article 60 (Multiple sentencing) of this Code. Thirteenth, both of Criminal Codes contains provisions on probation. Pursuant to article 72 (Conditional sentencing) of Criminal Code of Uzbekistan, in case of imposing a sentence of imprisonment, referral to a disciplinary unit, job limitation or correctional labor, the court, taking into account the nature and degree of social danger of the committed crime, the identity of the perpetrator, and other circumstances of the case, comes to the conclusion that it is possible to correct the convicted person without serving the sentence, but under conditions of control over his behavior, may accept the sentencing as conditional. In this matter, the court decides not to execute the imposed punishment if within the probationary period determined; there are no grounds for canceling the conditional sentence. The probationary period ranges from one to three years and calculated from the day the sentence is issued. From the same day, the probationary period is calculated if the decision on probation is issued by a higher court. In case of a conditional sentencing, the court, if there are grounds for this, may oblige the convicted person to fix for the harm caused within a certain period of time, to get a job or study, to notify the bodies that monitor the behavior of conditionally sentenced persons about a change of the place of accommodation, work or study, to periodically visit for these authorities for registration, not to visit certain places, to be at a certain time at the place of accommodation, to undergo treatment for alcoholism, drug addiction, substance abuse or a sexually transmitted disease.

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Control over the behavior of conditionally sentenced persons is performed by the bodies of internal affairs, and in relation to military personnel - by the command of military units and institutions.

During the probationary period, the court, upon submission of the body supervising the behavior of the convicted person, may cancel in whole or in part or add to the duties previously established for him.

If conditionally sentenced person during a probationary period does not perform the duties imposed on him by the court or commits violations of public order or labor discipline, which resulted in the application of measures of administrative punishment or disciplinary action, in accordance with the presentation of the body that supervises his behavior, the court can make a decision about the cancellation of conditional sentenced person and execution of punishment appointed by a verdict.

Conditional sentencing does not apply to persons convicted for especially grave crimes, as well as to those previously convicted of intentional crimes to punishment in the form of imprisonment, with the exception of persons under the age of eighteen, persons with disabilities of groups one and two, women, and persons over sixty years old.

If the condemned commits a new crime during the probationary period, the court shall impose punishment on him according to the rules provided for in Article 60 (Multiple sentencing) of existing Code.

And section 731 of the Canadian Criminal Code sets out that, where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, (a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or (b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order. Sections 742-742.7 of the Canadian Criminal Code provides a procedure of Conditional Sentence of Imprisonment as well.

Analysis of research results Considering that the research of scientists from Uzbekistan and authors from the CIS member countries regarding the analysis of the institute of mitigation of punishment in the Criminal Code of Canada is practically not found, we will make a small digression from the controversy and state our following opinion on the analysis of the results of the study: - unlike the Criminal Code of Uzbekistan, the Criminal Code of Canada does not specify any direct rules on retroactive power, which could provide additional opportunities for perpetrator; - both of the Criminal Codes stipulate general principles subject to mandatory taking into account during sentencing, although the list of such principles in Canadian Criminal Code contains much more; - despite the Criminal Code of Uzbekistan reflects the list of mitigating factors (paragraph 1 of the article 55), which has opened/non limited character, as any other factors not stipulated in the list above may be recognized by the court as mitigating factor (paragraph 2 of the article 55), the Criminal Code does not exist a list of such factors. Moreover, the Criminal Code specify, “circumstances considerably decreasing the degree of social danger of a committed offence” (article 57) and “special mitigating factors” (article 57-1), which means the special status of the foregoing mitigating factors. Furthermore, Criminal Code of Uzbekistan specifies a procedure for the imposition of punishment for offences for which a plea

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agreement has been concluded. Moreover, regarding the Criminal Code of Canada, it should be noted that Criminal Code is one of the sources of criminal law along with the “Case Law”. Definitely, the Case Law determines a list of mitigating factors based on litigating practice; - the Criminal Code of Uzbekistan sets a separate section (Section 6 of the General Part, Chapters XV-XVI) on the features of minor’s criminal liability. Moreover, the foregoing Criminal Code included separate mitigating factors for committing an offence by minors in the list of mitigating factors mentioned above. In turn, Canadian Young Offenders Act and Youth Criminal Justice Act perform the same functions stated above; - in spite of the stipulation of a procedure on criminal liability for joint offences by both criminal laws, only Criminal Code of Uzbekistan (articles 27-31 and 58) provides an opportunity to participants in the mitigation of punishment accordingly; - Criminal Code of Canada as well as the General Part of the Criminal Code of Uzbekistan provide a list of criminal defences. However, only Criminal Code of Uzbekistan (sub-paragraph “f” of the paragraph 1 of article 55) specifies several mitigating factors connected with the criminal defences: commission of an offence in excess of necessary extreme necessity, self-defense, justifiable professional or economic risk, infliction of injury when apprehending a person who has committed a socially dangerous act; - oppoite to the Criminal Code of Canada, the existing edition of the Criminal Code of Uzbekistan does not prescribe procedures for the criminal liability of legal persons. And by the way, within CIS member countries, which have a similar legal system, Criminal Codes of Moldova, Ukraine, and Azerbaijan have already implemented the issue of criminal liability for legal persons; - Criminal Code of Uzbekistan provides provisions on pardon and amnesty. And

Criminal Code of Canada specifies such institutions as well; however, the “amnesty” has a different legal nature in the Criminal Code of Uzbekistan; - while the Criminal Code of Uzbekistan contains provisions on parole and probation (articles 72-73), such institutions are specified by Criminal Code of Canada (sections 731, 745.1 and 745.3) and Corrections and Conditional Release Act as well. Conclusions Based on the results of a comparative analysis of the institute of mitigation of punishment, it can be argued that in this regard, Criminal Code of Canada and the Criminal Code of Uzbekistan have many differences such as the absence of a single list of mitigating factors and criminal defences, special provisions on mitigation of punishment as per of Canadian Criminal Code. On the other hand, the absence of the foregoing mitigating factors’ list in Criminal Code of Canada as well as an inclusion of a rule provided in the paragraph 2 of the article 55 of the Criminal Code of Uzbekistan provide a wide right to judicial discretion for judges in both observing countries. Moreover, courts in Canada may be deprived in sentencing due to the existence of legal precedent. That’s why criminal courts in Uzbekistan are provided with a wider right to sole discretion in the framework of sentencing and reducing punishment as well. As per the results of a comparative analysis, we propose to adopt some of the provisions on mitigation of punishment and criminal defences from Criminal Code of Canada and implement them in 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 subsection 38(3) of the Criminal Code of Canada to the article 81 of the Criminal Code of Uzbekistan by amending the paragraph 3 in the following edition:

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SECTION SIX. CRIMINAL LIABILITY OF MINORS CHAPTER 15. PENALTY AND ITS PURPOSE Article 81. System of Punishment The following primary penalties may be imposed on persons who committed crimes under eighteen years of age: a. fine; a-1. mandatory community service; b. correctional labor; c-1. restriction of freedom; d. deprivation of liberty. Persons who committed offence under eighteen years of age may not be imposed additional punishment. In determining a sentence, the court shall take into account: a. the degree of participation by the minor in the commission of an offence; b. the harm done to victims and whether it was intentional or reasonably foreseeable; c. any reparation made by the minor to the victim or the community; d. the time spent in detention by the minor as a result of the offence; e. the previous findings of guilt of the minor; and f. any other aggravating and mitigating circumstances related to the minor or the offence that are relevant to the purpose and principles set out in this paragraph. From our point of view, foregoing amendment shall require courts to pay even closer attention on process of imposition of punishment for minors. II. To implement the provisions of the section 25 (Persons acting under authority) and section 45 (Surgical operations) of the Criminal Code of Canada to the Criminal Code of Uzbekistan by supplementing paragraph 2 of the article 35, sub-paragraph “f” of the paragraph 1 of article 55 and amending the articles 41-2 and 41-3 accordingly in the following 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; acting under authority; surgical operations (paragraph 2). Article 41-2. Persons acting under authority Everyone who is required or authorized by law to do anything in the administration or enforcement of the law: a. as a private person, b. as a law enforcement officer, c. in aid of a law enforcement officer, or d. by virtue of his office, is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose. A law enforcement officer, and every person lawfully assisting the law enforcement officer, is justified in using force that is intended or is likely to cause death or grievous bodily harm to a person to be arrested, if: a. the law enforcement officer is proceeding lawfully to arrest, with or without a warrant, the person to be arrested; b. the offence for which the person is to be arrested is one for which that person may be arrested without a warrant; c. the person to be arrested takes flight to avoid arrest; d. the law enforcement officer or other person using the force believes on reasonable grounds that the force is necessary for the purpose of protecting the law enforcement officer, the person lawfully assisting the law enforcement

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officer or any other person from imminent or future death or grievous bodily harm; e. the flight cannot be prevented by reasonable means in a less violent manner.

Subject to foregoing paragraph 2, a person is not justified for the purposes of foregoing paragraph 1 in using force that is intended or is likely to cause death or grievous bodily harm unless the person believes on reasonable grounds that it is necessary for the self-preservation of the person or the preservation of any one under that person’s protection from death or grievous bodily harm.

Article 41-3. Surgical operations Every one is protected from criminal responsibility for performing a surgical operation on any person for the benefit of that person if: a. the operation is performed with reasonable care and skill; b. it is reasonable to perform the operation, having regard to the state of health of the person at the time the operation is performed and to all the circumstances of the case.

Article 55. Mitigating factors Mitigating factors shall be: a) voluntary surrender, active repentance, or assistance in offence detection; b) voluntary expiation of the harm; c) commission of an offence due to severe 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, a justifiable professional or economic risk, acting under authority, performing surgical operations; g) commission of an offence by a minor; h) commission of an offence by a pregnant woman; i) commission of an offence under the influence of the wrongful or amoral behavior of a victim (paragraph 1).

When imposing a punishment, a court may recognize a circumstance not envisaged by this Article as mitigating (paragraph 2).

A mitigating circumstance envisaged by an Article of the Special Part of this Code as an element of composition of offence shall not be taken into account when imposing a punishment (paragraph 3).

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 28.01.2022, 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 Provocation (section 232), Forfeiture of Property (sections 83.13-83.17, 115, 164.2, 164.3, 192, 462, 462.37-462.46, 462.49, 490.1-492.2, 689, 734.6, 762), Imposition of punishment for organizations (sections 22.1, 22.2, 715.3-715.43, 718.21, subsection 727(4)), Pleas (sections 606-613), Cumulative punishments (subsections 718.3(4), 718.3(5), 718.3(6), 718.3(7), 732.1(3.1), 732.1(3.2), 735 (1)), Provisions of Youth Criminal Justice Act, from the Criminal Code of Canada, whichever in our view provides complete conditions regarding to above mentioned institutions.

E-ISSN: 2181-1024 Volume 4, Issue 2 (2023) TSUL Legal Report 31