Issues of Criminal Responsibility for Torturing Minors and Children

Introduction

After gaining independence, Uzbekistan is trying to move forward towards the goal of building a democratic and legal state, a free civil society. In this regard, we can say that the reform of the judicial and legal system, in turn, requires the implementation of a number of tasks aimed at improving and liberalizing criminal legislation. These tasks include the basics of criminal responsibility for crimes against health and clarification of its specific features.

In addition, the year 2022 of the President of the Republic of Uzbekistan Pursuant to the Decree No. PF-60 of January 28 "On the development strategy of New Uzbekistan for 2022-2026", "The 16th goal of the development strategy of New Uzbekistan for 2022-2026 is to ensure public safety, the condition that caused the commission of crimes- it was decided to create an effective system for timely detection and elimination of conditions [1]. This, in turn, also applies to questions of responsibility for the crime of torture.

This is evidenced by the adopted resolution of the President of the Republic of Uzbekistan "On measures to radically improve the system of criminal and criminal procedure legislation", adopted on May 14, 2018 [2]. This resolution approved the Concept for improving the criminal and criminal procedural legislation of the Republic of Uzbekistan for 2018 – 2021 [3].

In the Criminal Code of the Republic of Uzbekistan, among crimes against health, torture is included in the category of serious crimes, while, despite the fact that measures to prevent these crimes have been developed, there is no significant decrease in the number of these crimes.

The purpose and motivation of the crime of torture can be different, the correct establishment of motivation serves as an accurate and objective qualification of the crime and the correct imposition of punishment in relation to the perpetrator, since in practice there are cases of incorrect qualification of crimes.

One of the reasons for errors and shortcomings is the misinterpretation of the motivation for the crime, which requires a deep analysis of the objective and subjective signs of a crime in conjunction with other similar crimes. One of the greatest benefits given to a person is his health. Caring for the protection and ensuring his inviolability is one of the tasks of the state. At the same time, the protection of the individual, his rights and freedoms is defined as the function of the criminal law. In the Criminal Code of the Republic of Uzbekistan, among crimes against health committed against a person with the use of violence, the crime of torture is of particular importance.

Based on the above, the relevance of research and scientific study of this topic is reflected in the following: Firstly, torture is an intentional injury to a person's health, and the lack of scientifically based information on distinguishing it from similar crimes and personal (jealousy, revenge, hatred, etc.) motives leads to the wrong qualification of these crimes;

Secondly, some of the objective signs specified in the disposition of the crime of torture in Article 110 of the Criminal Code, including the issues of the scholars' debate about what constitutes "persistent beating" and "other actions", and the conflict with the requirements of the optional signs of the subjective side of this crime;

Thirdly, the issues of responsibility for the aggravating features of the criminal offense have not been studied in the framework of a separate study, and this issue needs to be analyzed from a scientific-theoretical and practical point of view.

Methodology

The current study is conducted using several general scientific methods including historical, systematic, structural, comparative legal, logical, accurate sociological, scientific, comprehensive research, induction and deduction, statistical data analysis.

Discussion

In accordance with Article 110 of the Criminal Code of the Republic of Uzbekistan, systematic beatings or other acts of torture are criminalized. At the same time, it is indicated that they should not entail the consequences provided for in Articles 104, 105 of the Criminal Code.

In criminal law, torture is included in crimes against health. However, some scholars disagree. For example, according to P.B. Bakunov, if, as a result of beatings and other physical violence, a person feels pain, but the anatomical integrity of the body or the physiological functions of any organs is not violated, one cannot speak of bodily injury. In addition, causing bodily harm is a criminal offense with a material composition, in connection with which, the law requires the onset of certain consequences [4].

Nevertheless, the theory of criminal law, like the forensic practice, recognizes torture as causing bodily harm. According to the Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan dated June 27, 2007 "On judicial practice in cases of causing deliberate bodily injury", beatings or other actions of the nature of torture should be applied systematically, i.e. at least three times, while they must be covered by a single intent and aimed at causing the victim to physical or mental suffering [5].

As you can see, criminal law and judicial practice understand beatings as an act of torture. In this norm, the concepts of "torture" and "beatings" are used as an alternative action. In our opinion, beatings are a separate socially dangerous act. Beating means the infliction of repeated blows by the perpetrator without causing bodily harm. "Torture is an act associated with systematic beatings or other actions, including in the form of pinching, cutting, causing multiple but minor injuries with blunt or sharp-piercing objects, thermal effects and other similar actions". Scientists also approach the concept of "torture" in different ways, noting beatings as one of its types. In particular, M.H.Rustambaev notes that “torture is prolonged infliction of pain, pinching, slitting, infliction of multiple but small injuries with blunt or sharp-piercing objects, thermal effects and other similar actions. Torture inflicts severe physical and moral, mental suffering, pain, torment on the victim" [6].

SI Ozhegov understands "torture" as infliction of very severe pain or suffering (physical or mental pain) [7]. We disagree with this and believe that the concepts of "torture", "torture", "causing suffering" and "beatings" should be distinguished. Since these concepts play an important role in the classification of similar crimes, their delineation.

R.D.Sharapov also recognizes torture as a continued, usually violent, direct effect on a person's skin in the form of severe physical pain (pinching, cuts, burns, touching the body with electric energy, a sharp object, and others) [8]. According to P. Konstantinov, torture "is expressed in physical or mental impact by inflicting constant beatings or committing other violent actions or inaction, without causing moderate or serious bodily harm"[9]. I. Samolyuk argues that torture should be understood as causing harm to the health of the victim by causing physical or mental suffering[10]. Analyzing the above opinions, we can join the views of R.D. Sharapov, since torture is expressed in continued violent actions in the form of a direct impact on the human skin to cause severe physical pain.

Fromamedicalpoint of view, torture is aspecialpsychophysiological state of the body resulting from physical pain from very strong or destructive effects, accompanied by organic or functional disorders of a particular organism [11].

According to G.N.Borzenkov, from a medical point of view, physical pain is not a warning to the body about troubles, pain, in itself has a damaging effect on living organisms and, in its own way, is harmful to health. Such effects can take various forms, for example, narrowing of blood vessels, increased blood pressure, changes in blood clotting levels, changes in blood sugar levels, and others. Beating, beatings and torture are ways to inflict varying degrees of bodily harm, including grievous [12].

According to R.D.Sharapov, the appearance of pain in the body is accompanied by a number of objective changes. These changes affect various life systems, such as the respiratory and cardiovascular systems. From a medical point of view, significant physical pain cannot be recorded, but can lead to a deterioration in the state of a healthy body. Thus, physical pain causes serious harm to human health [13].

F.Takhirov, his disagreement with the above opinion, notes: “the infliction of beatings or other violent actions that cause physical pain cannot be attributed to bodily harm. By itself, inflicting pain leads to a subjectively unpleasant situation, but if it does not lead to a collapse of health, accompanied by some objective signs (pain shock), this cannot be recognized as bodily injury [14].

According to A.D.Tartakovsky, it is precisely the systematic nature of torture that generates physical or mental suffering [15].

We also believe that systematic torture results in physical or mental suffering. The systematic nature of torture is understood as the continuity of the commission of acts of violence, when the actions of the perpetrator are interconnected and directed against a specific victim, and are expressed not only in causing physical pain, but also mental suffering, humiliation [16].

That is why, in our opinion, any commission of violent acts more than three times cannot be qualified as torture. Since torture is expressed in similar actions, covered by a common intent, it should be included in the category of continuing crimes, for example, causing grievous bodily harm as a result of torture, etc. According to I.P.Portnov, episodes of beatings, as a type of torture, are characterized by a short interval of time [17].

V.B.Borovikov points out that in some cases, judicial practice recognizes the presence of corpus delicti of torture when beating, when there is a long time interval between these actions, justifying this by their interconnectedness, and the integrity of their internal structure[18]. In this case, in order to recognize the presence of corpus delicti in the form of torture, it is necessary to prove that all episodes organize a certain system of behavior, have internal unity, are covered by the direct intent of the perpetrator and are aimed at causing the victim to physical and psychological suffering. As N.I.Zagorodnikov points out, "a single act of inflicting light bodily harm, resulting in physical suffering, pain (for example, with burns), as an exception, can be qualified as torture" [19]. When beating, the sign of inflicting "suffering", in contrast to a single infliction of beatings, is inherent in torture. We consider the opinion of N.I. Zagorodnikov about the possibility of causing physical and mental suffering as a result of single actions when qualifying a crime in the form of torture as justified.

In addition, along with torture, the concept of "causing suffering" is used, which also presents some problems. In particular, as given in the Uzbek Explanatory Dictionary, "causing suffering means causing physical or psychological pain" [20].

In fact, part 2 of Article 110 of the Criminal Code of the Republic of Uzbekistan stipulates responsibility for the aggravating circumstances of the crime of torture against a minor, against a woman whose pregnancy is known to the perpetrator, and against a person whose infirmity is known to the perpetrator.

Results

Committing the crime of torture against a minor is also considered as an aggravating circumstance. According to Article 3 of the Law of the Republic of Uzbekistan "On Guarantees of Children's Rights" adopted on January 8, 2008, minors are persons who have reached eighteen years of age (before adulthood). Therefore, in our opinion, minors should be understood as persons under the age of 18 based on the provisions established by the national legislation of the Republic of Uzbekistan.

According to some legal scholars, a minor is a person who has reached the age of 16 before committing a crime, but has not reached the age of 18 [21].

There are other similar points, for example, persons who have reached the age of 14 before committing a crime, but have not reached the age of 18, who can be exempted from liability or punishment with the use of coercive measures, are considered minors [22].

Minors are natural persons under the age of eighteen living in the territory of the Republic of Uzbekistan, who may be incompetent or partially incompetent depending on their age [23].

Although there is no specific legal norm related to the legal status of a minor in the criminal legislation of the Republic of Uzbekistan, issues related to the characteristics of the responsibility of minors are important.

In the criminal-legal literature, many opinions have been expressed in this regard. For example, some legal scholars recognize the need to include the legal status of a minor in the eighth section of the Criminal Code of the Republic of Uzbekistan entitled "Legal Meaning of Terms" [24].

In our opinion, it is not appropriate to include the legal status of a minor in the criminal law. First, the legal status of a minor is defined in the Law of the Republic of Uzbekistan "On Guarantees of Children's Rights" adopted on January 8, 2008 [25].

Secondly, this Law indicates that the legal status of a minor is the same not only in criminal-legal relations, but also in all socio-legal relations.

According to Sh. Berdiev, there are two different trends (approaches) to the concept of regulation of social relations related to minors in the Criminal Code:

a). minors are considered objects of crime, and protection of their rights and legal interests from criminal aggression is provided, in which the rights of minors as victims of material and moral damage are expressed.

b). According to this approach, minors are considered objects of crime in articles 118-119, 122-125, 127-131, 135 of the Criminal Code, as well as both objects and signs of aggravating responsibility, part 2 of article 110, part 2 of article 145 of the Criminal Code. It is expressed in part 245, paragraph 2 of article 273, paragraph "d", paragraph 2 of article 277, paragraph 3 of article 278, which shows that their rights and legitimate interests are protected by the legislator based on the idea of humanity.

c). a minor who has committed a crime is defined as a necessary element of the composition of the crime - the subject of the crime [26].

Agreeing with Sh. Berdiev's opinion, minors are studied as objects of crime within the scope of the research.

Committing the crime of torture against a minor is qualified by Article 110, Part 2, Clause "a" of the Criminal Code. If we give an example from court practice in this regard, it is about the case heard in the Shaikhontokhur district court of Tashkent city. G. husband J. as a result of a mutual disagreement with him, being angry with him, from December 2015 to April 19, 2016, in order to get his wife's pain, his children from the marriage - a minor daughter R. born in 2007, a minor son J. born in 2009 and a minor son I., who was born in 2010, constantly tormented them with different actions, taking advantage of their weak position.

In addition, G. continuing his criminal actions, on April 19, 2015 at 21:00 in his apartment, where he lived, due to a disagreement, his daughter R., born in 2007, was a minor. hit him with his hand and injured him. As a result, R. on the same day, he was admitted to the hospital for treatment with the diagnosis of closed brain injury, concussion, soft tissue laceration of the head and neck, swelling in the left shoulder area.

According to the conclusion of the forensic medical examination No. 566-x-XUD dated April 27, 2016, it was determined that R., a minor citizen, suffered a minor injury that caused a short-term health impairment.

While assessing the legal qualification of G.'s criminal actions, the court finds it necessary to qualify his criminal actions based on the following.

In the first paragraph of paragraph 24 of the Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan No. 6 of June 27, 2007 "On judicial practice in cases related to intentional injury to the body", "Courts should assume that the body is intentionally caused to deteriorate for a short period of time or the ability to work for a long time." "It is stated that administrative responsibility is established for causing minor injuries that do not cause the person to disappear for an indefinite period of time" [27]. Paragraph 24, second paragraph of this Plenum Decision states: "Criminal responsibility for intentional injury to the body, only if it is repeatedly committed within one year from the date of entry into force of the decision to impose an administrative penalty on a person for such an act (Part 1 of Article 109 of the Civil Code) or "causes a short-term deterioration of health (the second part of Article 109 of the Civil Code)" [28].

G. being drunk, being in his apartment, he hit his daughter R. with his father for walking around the park with his father, hit her on the hands with his hand, pinched her, then grabbed her throat with one hand and hit her head against the wall, causing the health of the victim R. caused a minor injury that caused a short-term impairment.

In such cases, the court qualified G.'s criminal actions as part 2 of Article 109 of the Criminal Code of the Republic of Uzbekistan "intentionally inflicting minor bodily injury that caused deterioration of health for a short period of time, i.e. for a period of more than six days, but not more than twenty-one days".

The decision of the Plenum of the Supreme Court of the Republic of Uzbekistan dated June 27, 2007 No. 6 "On judicial practice in cases related to intentional bodily injury" in the first paragraph of paragraph 25 "To qualify the actions of the accused under Article 110 of the Criminal Code, beatings or other acts of torture" it is specified that the actions are intentional, continuous, i.e. covered by a single intention with the aim of inflicting physical or mental pain on the victim and committed at least three times.

In the second paragraph of paragraph 25 of the decision of the Plenum, it is stated that "Inflicting a slight injury to the body in the course of torture (regardless of whether it caused health deterioration or not) is covered by Article 110 of the Civil Code and is additionally qualified by Article 109 of the Civil Code, the second and third parts of Article 1261 not required" is indicated.

Based on the above circumstances, the court considers the criminal actions of G. as part of Article 109, Part 2 and Article 110, Part 2 of the Criminal Code of the Republic of Uzbekistan. He qualified it as having been committed with the symptoms of "torture"[ 29].

Based on the results of the survey conducted with law enforcement officers on this subject, which we are studying, the cases of committing the crime of torture against a minor - 35%, against a woman whose pregnancy is obvious to the culprit - 20%, against a person who is obviously in a weak state. 35%, and 10% for two or more persons.

In the course of the research, 4.7% of criminals committed crimes of torture, 2.1% committed defamation, 1.0% endangered, 3.2% insulted, 1.6% committed suicide.

When studying the age of juvenile offenders who committed crimes against children, 10.1% of them were 18-25 years old, 38.6% were 25-35 years old, 26.8% were 35-45 years old, and 15.5% were 45 years old. - 55 years old and 9.2% were over 55 years old.

It can be seen that 25-45-year-olds make up the main part of persons who commit violence and torture in the family with high criminogenic activity. 64.8% of persons in this category are unemployed, 27.6% are employees, 5.4% are employees, and 2.3% are entrepreneurs.

The second aggravating circumstance of the crime of torture is 2) when it is committed against a woman whose pregnancy is known to the perpetrator.

Article 56, part 1, paragraph "a" of the current Criminal Code of the Republic of Uzbekistan specifies the offense against a woman whose pregnancy is known to the perpetrator as an aggravating circumstance. shown as status.

Because, as a result of the perpetrator's socially dangerous aggression, not only the health of the woman, but also the life or health of the fetus, which has the right to live, is endangered. That is why, as a necessary sign of prosecution under paragraph "b" of Article 110 of the Criminal Code, the perpetrator must have known that the victim was pregnant before committing the socially dangerous assault.

In order to determine the existence of an aggravating circumstance, it must be established that the court must have known the pregnancy of the guilty woman beforehand. According to Section 8 of the Special Part of the Criminal Code, knowledge is conditioned by the attitude of the person to the circumstances and even the act, which indicates the knowledge of this law. External signs that the woman's pregnancy was known to the perpetrator, as well as other information obtained by the perpetrator before or during the commission of the crime, may testify. The assumption about the pregnancy of the victim should be considered as obvious to the culprit. At the same time, if this assumption turns out to be wrong (if the victim does not turn out to be pregnant), it is not allowed to record the existence of the condition described in the act. Also, in cases where the perpetrator assumes that the victim is not in a state of pregnancy, there will be no pre-existing signs [30].

For example, on February 19, 2022, R. while the person named S. was quarreling with his wife. His son called neighborhood prevention inspectors to stop the quarrel. After the internal affairs officer stopped the quarrel and warned R., he wanted to take revenge on S. for calling the internal affairs officer, and beat him several times for five days without leaving the house. As a result, he caused serious damage to S.'s health. In the incident R. knowing that his actions are socially dangerous, he sees that dangerous consequences will occur, and he acted with the intention that such consequences will occur [31].

The period of pregnancy, as well as whether or not the fetus was killed as a result of the murder of a pregnant woman, is not important for the qualification of the crime. However, the degree to which this situation leads to a heavier punishment must be determined by the court based on the "level of prior knowledge", that is, if the victim's pregnancy is not only clear and obvious to the perpetrator, then the punishment should be more severe. In this case, it is not important for this situation that the crime resulted in some consequences (for example, premature birth, death of the baby, poisoning of the victim, etc.).

In this regard, in the decision of the Plenum of the Supreme Court of the Republic of Uzbekistan dated June 27, 2007 "On judicial practice in cases related to intentional injury to the body" in the matter related to the health of a pregnant woman, to qualify the crime as a serious or moderately serious injury to the body of a woman whose pregnancy is known to the perpetrator ( Clause "a" of the second part of Article 104, Clause "b" of the second part of Article 105, Clause "b" of the fifth part of Article 1261, Clause "a" of the seventh part of Article 1261 of the Criminal Code) if a woman is pregnant until her body is injured it is indicated that it should be known to the guilty party.

A woman's pregnancy can be known to the perpetrator in various ways, that is, from her appearance, from previous acquaintance, from the victim herself, and other similar circumstances. If the victim herself falsely told the aggressor that she was pregnant, but the aggressor intentionally inflicted severe bodily harm on the victim's body without knowing that it was a lie, the decision of the Plenum of the Supreme Court did not explain how to qualify such an action of the aggressor. This leads to different qualification of the crime in practice.

In our opinion, such a situation should be qualified by the second part of Article 25 and the second part of Article 110, paragraph "b" of the Criminal Code of the Republic of Uzbekistan, that is, as a result of the aggressor knowing that she is pregnant, but despite this, her health and physical integrity are damaged as a result of torturing a woman whose pregnancy is obvious to the guilty party. should be considered an error according to the object [32].

If the accused tortures the victim assuming that she is pregnant, but the woman is not pregnant, such a situation should also be qualified by Article 25 and the second part of Article 110, clause "b" of the Civil Code.

In order for the crime to be qualified by paragraph "b" of the second part of Article 110 of the Criminal Code, it is not important whether the fetus was aborted.

If the perpetrator did not know that she was pregnant before assaulting the victim, could not have known, and did not guess, such a situation should be qualified according to the consequences.

Article 56 of the Criminal Code of the Republic of Uzbekistan, paragraph 1, paragraph "a", provides for the commission of a crime against a woman whose pregnancy is known to the guilty party as an aggravating circumstance, but if such a situation is included in the scope of the crime as a necessary sign of the act in the norms of the special part of the Criminal Code, the court when assigning a punishment for such a crime, without referring to the provisions of Article 56 of the Criminal Code, the punishment is assigned within the framework of the sanction of the Special Part norm. Because the legislative body, while developing this norm, determined the part of the sanction taking into account all the circumstances of the case, and specified the responsibility in a separate legal norm, showing it as a complex type of crime.

It should be noted that the period of pregnancy is not important for qualifying the act as a crime under Article 110, Part 2, Clause "a" of the Criminal Code of the Republic of Uzbekistan.

Article 56 of the Criminal Code of the Republic of Uzbekistan defines "Aggravating Circumstances of Punishment": b) the seriousness of criminal aggression committed against a young child, an elderly person or a person in a weak condition is indicated. In the crime we are studying, this sign is not included in the articles. The presence of this sign in the committed crime indicates the high level of social danger of the crime.

Committing a crime against a young child, an elderly person, or a person in a weak state (paragraph "b" of Article 56 of the Criminal Code) facilitates the commission of a crime, testifies to the moral depravity of the perpetrator, and his serious danger to society. All this requires the need to consider this situation as an aggravating circumstance when sentencing the guilty party.

Young children should be considered children and adolescents under 14 years of age. At the same time, it should be noted that a person should be considered to have reached the age when responsibility for a crime begins after the birthday, that is, from the zero hour of the next day [33].

Elderly means a woman over 55 years old and a man over 60 years old.

Persons in a weak situation should be understood as those who cannot resist the criminal due to age, illness, physical disability and other factors.

Weakness is manifested in the inability of the victim to resist the criminal due to physical or mental illness, to protect his rights, interests and value, as well as to avoid the expected danger.

Weakness can be caused by various objective and subjective reasons, including chronic illness, sickness, sleep. "Drunkenness of the victim under the influence of alcoholic drink, narcotic drug or psychotropic substance to the extent that he cannot understand the surrounding situation may be the basis for recognition that he was in a weak state. It is important who put the victim in this situation [34]".

In order to qualify the criminal act under this paragraph, the guilty person must have realized that the victim is young, old, disabled or in a weak state. Otherwise, the aspect in question will not be allowed to be recorded.

Persons in a weak situation should be understood as those who cannot resist the criminal due to age, illness, physical disability and other factors. Weakness is manifested in the inability of the victim to resist the crime due to his physical infirmity, to protect his rights, interests and dignity, as well as to protect himself from the expected danger [35].

Weakness - physical weakness, weakness, inability to do something, incapacity[36]. According to A.A. Rasulov, the weak state of a person is "a situation in which he is deprived of the opportunity to resist when some action is taken against him due to his physical or pathological condition [37]".

A.O.Kadirov states that "according to one or another characteristic of a person, he cannot resist criminal aggression or take one or another measures of self-defense [38]".

Conclusion

In addition, the crime of torture may endanger other persons. Therefore, we recommend adding the aggravating factor "in a way that is dangerous for many" to the second part of Article 110 of the Criminal Code. Today, in forensic practice, there are frequent cases of serious injury to health in a way that is dangerous for many people.

The method we propose is used during the study of the legislation of foreign countries. This method is used in the criminal legislation of most countries, for example: Criminal Code of the Republic of Moldova, Article 151, Part 2, Clause "f", Criminal Code of the Republic of Armenia, Article 112, Part 2, Clause "5", Republic of Tajikistan Article 110 of the Criminal Code. Part 2. In item "e", Article 111 of the CC of the Russian Federation. Part 2. In paragraph "v", we see that the crime of causing serious damage to human health is provided in the articles as a qualification sign. To conclude, firstly, in crimes against health, the signs of the direct object are similar to the related object. At the same time, each of them can be determined based on the level and nature of the damage to health. The immediate object of crimes against human health is social relations that provide protection from serious harm.

Secondly, in the practice of judicial investigation, there are often cases of the crime of torture being committed in a way that is dangerous to health for many people. The actions of the guilty persons in the specified situation are causing a problem in the qualification of this situation by the judicial investigation authorities.

Based on this, we suggest that the second part of Article 110 of the Criminal Code be supplemented with the aggravating symbol "in a way that is dangerous for many". The method we propose is used in the period of studying the legislation of foreign countries. This method is used in the criminal legislation of most countries, for example, the Criminal Code of the Republic of Moldova, Article 151, Part 2, Clause "f", the Criminal Code of the Republic of Armenia, Article 112, Part 2, Clause "5", Republic of Tajikistan Article 110 of the Criminal Code. Part 2. Clause "e", Article 111 of the Russian Federation. Part 2. In paragraph "v", we see that the crime of causing serious damage to human health is provided for in the parts of the article as a qualifying sign.

Thirdly, in the theory of criminal law, taking into account that the crime of torture belongs to the series of formal crimes, it is considered important to separate the necessary and optional features of the objective side.

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