PROBLEMS OF THE SUBJECT MATTER OF THE ILLEGAL EXIT OR ENTRY TO THE REPUBLIC OF UZBEKISTAN: AZIZAKHON ALLANOVA
ISSN: Applied For
Author: Azizakhon Allanova
Tashkent State University of Law,
Problems of the subject matter of the illegal exit or entry to the Republic of Uzbekistan
Keywords: component of the crime, the subject matter of the crime, illegal exit to abroad, State border, entry to the Republic of Uzbekistan.
Abstract: The article analyzes examination of subject matter of the illegal exit or entry to the Republic of Uzbekistan, its actuality and qualification problems regarding the crime. Moreover, the scholar’s opinion and the author’s personal conclusions on the subject matter of the crime have been drawn.
The subject matter of the offense is the psychological activity, which is directly related to the offense, which is characterized by the specific mentality of the person in relation to the socially dangerous act committed by him, the form of the specific offense, as well as the mental activity of the person at motive, purpose and mental state of the crime. The subject matter of the offense is the psychological relationship of the person who committed commission of the crime due to culpable guilty action which constituted as criminal activity in the criminal code . A. Yakubov and R. Kabulov’s opinion is the subject-matter of the crime – the attitude of the guilty person to the socially dangerous act committed as a crime in the criminal law. This is an important element of the crime, and the absence of it leads to the absence of a crime component. The subjective side of the offense is the sum of the key elements characterizing the psychological attitude of the person to the crime committed during the commission of a crime envisaged by the criminal law . From the point of view of the doctrine of the crime, the subjective aspect of the criminal proceedings is characterized by a certain proportion of consciousness and will, committed by an intentional or negligent act, motives of the subject of the offense. These factors make up the subjective aspect of the crime. Regardless of the role assigned by the legislator, every mark on the subject of the offense has absolutely certain meaning and significance, none of which constitutes the other as a constituent. This is especially important when evaluating the criminal offense, including the offense, the motive, and the intentional nature of the intentional entry into the Republic of Uzbekistan. An offense characterizing the psychological attitude of the subject to the entry or entry to the Republic of Uzbekistan is the main indication of the subject matter of the offense. The descriptions found in Articles 21, 22 of the Turkish Penal Code describe the mental attitude of the individual to socially dangerous and socially dangerous consequences. However, illegal entry or entry to the Republic of Uzbekistan is a formal offense. The offense of formal nature of the offense determines the nature of the mental attitude of the guilty person to the illegal movement of a person acting illegally or to enter the Republic of Uzbekistan. Particularly important is the qualification of the person to determine the psychological attitude to illegal entry or entry to the Republic of Uzbekistan. It is possible to state the existence of a criminal offense in the act committed in the law if the offense has the culprit. The researchers state that the intentional expulsion of a foreigner or entry to the Republic of Uzbekistan is committed with direct intent while describing the subject matter of the offense. “The crime is committed by the direct intent. The person knows the wrongfulness of his actions, that is, he/she understands that he/she is crossing the territory of the Republic of Uzbekistan without documents, falsified documents or without the appropriate permission “. According to R. Zufarov, the illegal entry, exits or crossing of the border occurs intentionally.
A person realizes that his actions are illegitimate, without passing through the State Border of the Republic of Uzbekistan, or without the permission of the authorities . In the case of carelessness, for example, crossing the border as a result of losing the target, the individual is not liable for Article 223 CC. Also, the compulsory crossing of the State border excludes liability. For example, various natural disasters, destructions, and so on. The Decision of the Plenum of the Supreme Court of the Republic of Uzbekistan of 25 November 2011 “On the Judicial Practice for the Dissolution of the State Border Crossing of the Republic of Uzbekistan” states: “In the event of a failure by the person of the State border crossing (for example, loss of orientation as a result of a natural disaster or an industrial phenomenon, as a result of threats of violence or violence), does not constitute a part of the proceedings “.Crossing the State Border of the Republic of Uzbekistan with violation of the established order due to inadequate maintenance does not constitute a criminal offense. Crossing the state boundary with violation of the established order is a result of an accident by the air or a river ship (access to territorial waters), natural disasters (storm, hurricane, airplane destruction) and other emergency situations that do not allow the Republic of Uzbekistan to forcibly cross the State border maybe. Even if the frontier fails, the liability under Article 223 of the Criminal Code of the Republic of Uzbekistan does not arise. Thus, the nature of the acts envisaged by Article 223 of the CC of the Republic of Uzbekistan can be concluded that illegal entry or entry to the Republic of Uzbekistan cannot be carried out under uncertainty.The Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan also states that “illegal entry to the Republic of Uzbekistan, illegally crossing the border of the Republic of Uzbekistan, in order to exclude the possibility of unlawful conviction, it is crucial to determine the nature of the actions of the perpetrator. Where the case is found to be a criminal offense, the court has a right to make a special ruling with respect to the officials of state bodies responsible for the criminal proceedings. “From a psychological point of view, it is not only unwilling to look at the consequences, but it can not be overlooked, because the consequences are inevitably the result of guilty conscious behavior. Therefore, it is possible to join the opinion of scientists who argue that there is a state of detention to determine if a crime is illegal or that the state of socially dangerous nature of the act is sufficient. “The inevitable consequence of the dialectical connection between the right and the will is the result of a person’s desire, as an element of a single criminally acceptable situation.” Problems of crime qualification and mistakes made by investigating and prosecutorial authorities are largely due to the wrongful assessment of the subjective nature of exit or entry to the Republic of Uzbekistan. This does not mean that there is no single approach to defining the characteristics of the subject of the offense in the subject of criminal law.Some authors believe that unlawful travel abroad or entry to the Republic of Uzbekistan can be committed with the right intent or intentional misconduct. Z.Aneznamova writes in this regard: “The subjective side of the offense is expressed in the form of guilt or guilty verdicts” . P. S. Dagel thinks that while formal offenses are not the element of the content, they will not be affected by psychological treatment, nor will they be influenced by crime or criminalization. There is no logic in distinguishing between right and wrong intentional offenses. It is enough to speak of the intentional conduct of formal offenses .In legal literature, the idea that direct and indirect intent is defined as an axiom in the CC is materialized, and in this connection, the law proposes that there is no clear and sinister concept of formal offenses [10; 11]. But we agree with the view that the definition of a deliberate crime under AI Marciev’s criminal law completely covers the nature of the psychological treatment of offenses of material nature and formal offenses .The guilty person, who is guilty of traveling abroad or entering the Republic of Uzbekistan, understands this nature of his acts. In our opinion, it is difficult to imagine that someone who committed a socially dangerous act did not want to do it. On the other hand, the perceived social danger of a crime committed by a person excludes categorical offenses in formal offenses, because “knowingly doing and at the same time allowing him to do so consciously excludes one another” . This type of curvy intentionality in formal offenses is characterized by internal contradictions and extends the range of deliberate intentions, as if the person only saw that he was committing a socially dangerous act, that is, he did not understand the socially dangerous nature of the act, that is, behind the negligence; if he understands this social nature of the act, he wants it, that is, deliberate action.The analysis of the above points gives an opportunity to conclude that the offense under Article 223 of the Criminal Code of the Republic of Uzbekistan is justified by the intentional misconduct of the authors. The consequence of a criminal offense is that the consequences of non-adjacent elements of an objective are based on a “formal” offense, which does not play any role in solving issues of legal valuation, by the attitude of a socially-guilty act committed by will.It is of crucial importance for a foreigner to go abroad or to identify the motives for entering the Republic of Uzbekistan for correct identification of the offense. However, the motives of the offense are not considered as signs of the offense and are accounted for by the court during the execution of the penalty . “Motivation acts as a driving force and represents a factor that encourages a person to commit an offense ”. In this regard M. R. Rustambaev , R. Zufarov  also expresses this view.The idea that the illegal exit or illegal entry of the Republic of Uzbekistan to the State Border of the Republic of Uzbekistan prevails in the field of criminal law and practical personnel. According to M. R. Rustambaev, if the guilty party crosses the state border crossing for the purpose of committing a crime against the Republic of Uzbekistan (for example, spying, deprivation, terrorism, etc.), then his actions should be qualified as a criminal offense .More specifically, if the illegal crossing of the border is carried out by the citizen of the Republic of Uzbekistan intentionally by the citizen of the Republic of Uzbekistan for the sovereignty, territorial integrity, security, power, defense potential and economy of the Republic of Uzbekistan, according to articles 157 and 223, and illegal exit or entry to the Republic of Uzbekistan if such acts are committed by foreign nationals or stateless persons for purposes described in Article 160 or 161 of the Criminal Code or Article 223 of the Criminal Code of the Republic of Uzbekistan, ie spying or extortion and illegal entry to the Republic of Uzbekistan or entry to the Republic of Uzbekistan.It can be divided into several groups, depending on the exact content of the crime, such as the motive of traveling abroad or entering the Republic of Uzbekistan illegally, as well as the motives of the crime. “The motive for committing this crime does not affect its qualification, except for the request for political asylum” . The main motives for traveling abroad or visiting the Republic of Uzbekistan are finding other ways to earn money for survival, hiding from criminal persecution, moving to another country, traveling with relatives, meeting with relatives, participating in holidays, fishing, and so on. It should be noted that in most cases, criminal behavior does not have one, but several motifs and one of them leads (“polymorphism”). However, since the motives for the commission of such a crime are not considered to be an indispensable element of the offense, they shall not affect the qualifications of the offender, but shall be taken into account when making a sentence.Thus, the description of the inherent traits of illegal entry or entry into the Republic of Uzbekistan is not just for the purpose of criminalization and proper punishment, but also for the establishment of effective preventive action.
- Рустамбаев М.Ҳ. Ўзбекистон Республикаси жиноят ҳуқуқи курси. Т.1. Умумий қисм. Жиноят тўғрисида таълимот: Дарслик. – Тошкент: ILM ZIYO, 2011. – Б. 164.
- Жиноят ҳуқуқи. Умумий қисм: Дарслик / А.С.Якубов, Р.Кабулов ва бошқ. – Тошкент: Ўзбeкистон Рeспубликаси ИИВ Акадeмияси, 2009. – Б. 160.
- Рустамбаев М.Ҳ. Ўзбекистон Республикаси Жиноят ҳуқуқи курси. Т.4. Махсус қисм. Иқтисодиёт соҳасидаги жиноятлар. Экология соҳасидаги жиноятлар. Ҳокимият, бошқарув ва жамоат бирлашмалари органларининг фаолият тартибига қарши жиноятлар: Дарслик. – Тошкент: Илм Зиё, 2011. – Б. 312.
- Ўзбекистон Республикаси Жиноят кодексига шарҳлар. / З.Х.Ғуломов, Р.А.Зуфаров, Р.К.Кабулов, М.М.Қодиров ва бошқ. – Тошкент: Адолат, 1997. – Б. 286.
- Ўзбекистон Республикаси Олий суди Пленумининг 2011 йил
25 ноябрдаги “Ўзбекистон Республикасининг Давлат чегарасини кесиб ўтиш тартибини бузишга оид ишлар бўйича суд амалиёти тўғрисида”ги Қарори. // www.lex.uz
- Никифоров Б.С. Субъективная сторона “формальных” преступлений. // Советское государство и право. – 1971. №3. – С. 118.
- Субботина В.И. Уголовная ответственность за заведомо незаконные заключение под стражу или содержание под стражей: Автореф. дисс. …канд. юрид. наук. – М., 2002. – С. 19.
- Уголовное право. Особенная часть: Учебник. – М., 1998. – С. 671.
- Дагель П.С. Проблемы вины в советском уголовном праве. // Ученые записки ДВГУ. – Владивосток, 1968. – Вып. 21. – Ч. 1. – С. 74.
- Новосельцев С.П. Преступления с формальным составом в уголовном праве: Автореф. дисс. …канд. юрид. наук. – Омск, 1998. – С. 18–19.
- Хлопцева Е.Ю. Уголовно-правовая охрана правосудия: Автореф. дисс. …канд. юрид. наук. – Екатеринбург, 1995. – С. 17.
- Марцев А.И. Виновность как признак преступления. // Актуальные проблемы борьбы с преступностью и правоприменительной практики. – Красноярск, 1999. – С. 42.
- Комментарий к Уголовному кодексу Российской Федерации: постатейный. / Отв. ред. Л.Л.Кругликов. – М., 2005. – С. 118.
- Галиакбаров Р.Р. Уголовное право. Общая часть: Учебник. – Краснодар, 1999. – С. 67.
- Комментарий к Уголовному кодексу Российской Федерации (постатейный). / Под общ. ред. Н.Г.Кадникова. – М., 2005. – С. 485.
- Российское уголовное право. Общая часть. / Под ред. В.С.Комиссарова. – СПб., 2005. – С. 206.
- Уголовное право Российской Федерации. Часть Особенная: Учебник. / Под ред. А.С.Михлина. – М., 2004. – С. 436.