11National University of Uzbekistan Volume 3 | NUU Conference 2 | 2022
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MITIGATING FACTORS AND CRIMINAL DEFENSES IN CRIMINAL LEGISLATION OF THE PRINCIPALITY OF LIECHTENSTEIN (COMPARATIVE
ANALYSIS)
Bunyod Ochilovich Islomov
Independent researcher of the Academy of the Ministry of Internal Affairs of the Republic
of Uzbekistan
ABSTRACT
This paper provides a comparative analysis of the criminal legislation of Liechtenstein in terms of consideration of the mitigating factors and criminal defenses. This paper provides overall explore of mitigation of sentence institute in accordance with the existing edition of the Criminal Code of the Liechtenstein, enacted on 24 of June, 1987 and entered into force from 1 of January, 1989 and the Criminal Code of the Republic of Uzbekistan, enacted on 22 of September, 1994 and entered into force from 1st of April, 1995, including the issues on determining the punishment for the criminal offences committed in a state of mental disorder as well as insanity and diminished responsibility, for incomplete offences and the criminal complicity, including criminal defenses, institutions on the withdrawal (voluntary refusal) from the commission of an offence and innocent harm. Pursuant to the results of the conducted analysis, similar and different sides of current criminal laws have been clarified, decisions on the concluded analysis and final conclusion on the implementation of some of criminal law norms to the criminal law of the Republic of Uzbekistan has been provided.
Keywords: offence, intent, negligence, causation, omission, imposition of punishment, mitigation of punishment, mental capacity, mental incapacity, diminished responsibility, self-defence, mistaken belief in justificatory facts, mistake of law, exculpatory situation of necessity, perpetrator, attempt, plea agreement, minor.
ЛИХТЕНШТЕЙН КНЯЗЛИГИ ЖИНОЯТ КОНУНЧИЛИГИДА ЖАЗОНИ ЕНГИЛЛАШТИРУВЧИ ВА ^ИЛМИШНИНГ ЖИНОИЙЛИГИНИ ИСТИСНО КИЛУВЧИ ХОЛАТЛАР (КИЁСИЙ ТАХ,ЛИЛ)
АННОТАЦИЯ
Ушбу мацолада Лихтенштейн жиноят цонунчилигида жазони енгиллаштирувчи ва цилмишнинг жиноийлигини истисно цилувчи х,олатларни х,исобга олиш масалалари циёсий тах,лил цилинган. Бу борада Лихтенштейннинг 1987 йил 24 июнда цабул цилиниб, 1989 йил 1 январь санасидан кучга кирган Жиноят кодекси хдмда Узбекистан Республикасининг 1994 йил 22 сентябрда цабул цилиниб, 1995 йил 1 апрел санасидан
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кучга кирган Жиноят кодексининг амалдаги тахрири буйича жазони енгиллаштириш институти умумлаштирилган холда, хусусан рухий холатнинг бузилиши холатида, шу жумладан ацли норасолик ва чекланган ацли расолик холатида содир этилган жиноятлар, тамом булмаган жиноятлар ва иштирокчиликда содир этилган жиноятлар учун жазо тайинлаш масалалари, цилмишнинг жиноийлигини истисно цилувчи холатлар, шунингдек жиноят содир этишдан ихтиёрий цайтиш хамда айбсиз холда зарар етказиш институтлари урганилган. Х,ар иккала мамлакат жиноят цонунларининг циёсий тахлили юзасидан мазкур жиноят цонунларининг ухшаш ва фарц цилувчи тарафлари аницланган, амалга оширилган циёсий тахлил юзасидан хулосалар келтирилиб, якуний фикр сифатида Лихтенштейннинг айрим жиноят-хуцуций меъёрларини Узбекистон Республикасининг жиноят цонунига татбиц цилишга доир таклифлар ишлаб чицилган.
Калит сузлар: жиноят, цасд, эхтиётсизлик, сабабий богланиш, харакатсизлик, жазо тайинлаш, жазони енгиллаштириш, ацли расолик, ацли норасолик, чекланган ацли расолик, зарурий мудофаа, фактик хато, юридик хато, охирги зарурат, бажарувчи, жиноят содир этишга суицасд цилиш, айбга ицрорлик тугрисида келишув, вояга етмаган.
ОБСТОЯТЕЛЬСТВА, СМЯГЧАЮЩИЕ НАКАЗАНИЕ И ИСКЛЮЧАЮЩИЕ ПРЕСТУПНОСТЬ ДЕЯНИЯ ПО УГОЛОВНОМУ ЗАКОНОДАТЕЛЬСТВУ
КНЯЖЕСТВА ЛИХТЕНШТЕЙН (СРАВНИТЕЛЬНЫЙ АНАЛИЗ)
АННОТАЦИЯ
т-ч u
В настоящей статье проведен сравнительный анализ уголовного законодательства Лихтенштейна в плане учета обстоятельств, смягчающих наказание и обстоятельств, исключающих преступность деяния. В данном плане изучен институт смягчения наказания в целом по действующей редакции Уголовного кодекса Лихтенштейна, принятого 24 июня 1987 года и вступившего в силу с 1 января 1989 года и Уголовного кодекса Республики Узбекистан, принятого 22 сентября 1994 года и вступившего в силу с 1 апреля 1995 года, включая вопросы назначения наказания за преступления, совершенные в состоянии психического расстройства, в том числе состоянии невменяемости и ограниченной вменяемости, за неоконченные преступления и преступления, совершенные в соучастии, включая обстоятельства, исключающие преступность деяния, а также институты добровольного отказа от преступления и невиновного причинения вреда. По итогам сравнительного анализа уголовного законодательства обеих стран, выявлены схожие и различные стороны настоящих уголовных законов, изложены выводы по проведенному сравнительному анализу и в качестве заключения предоставлены предложения по имплементации некоторых
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уголовно-правовых норм Лихтенштейна в уголовный закон Республики Узбекистан.
Ключевые слова: преступление, умысел, неосторожность, причинно-следственная связь, бездействие, назначение наказания, смягчение наказания, вменяемость, невменяемость, ограниченная вменяемость, необходимая оборона, фактическая ошибка, юридическая ошибка, крайняя необходимость, исполнитель, покушение на преступление, соглашение о признании вины, несовершеннолетний.
Liechtenstein's legal system belongs to Romano-German legal family [1; 2, P.166]. As far as Liechtenstein is a very small country and has always been significantly affected by Austrian history, both Liechtenstein's legal system and the organization of Liechtenstein's courts are heavily dependent on Austrian law. In this case, with some exceptions, some of scientists talk about the Liechtenstein Criminal Code as a reception of the Austrian Criminal Code, and this has already become a fait accompli [3, P.1443]. Nevertheless, Swiss law has also served as a role model for Liechtenstein's legal system. For example, Liechtenstein's company law, property law, and a large part of administrative law are based on Swiss law. Furthermore, Liechtenstein, being part of the European Economic Area, must implement European Economic Area law [4].
The basic organization of the judicial order in Liechtenstein consists of following three different branches:
The first branch is the so-called ordinary jurisdiction, which is responsible for criminal and civil law cases. The respective courts for this branch are the Princely Court (Fürstliches Landgericht; first instance), the Princely High Court (Fürstliches Obergericht; second instance) and the Princely Supreme Court (Fürstlicher Oberster Gerichtshof; third instance);
The second branch is the administrative courts: the individual administrative authorities as the first instance, in some cases an administrative appeals authority as the second instance, and the Administrative Court (Verwaltungsgerichtshof) as the second or third instance, depending on the legal matter at hand;
The third branch is the constitutional jurisdiction, which is exclusively exercised by the Constitutional Court (Staatsgerichtshof) as the sole constitutional court in Liechtenstein [5].
Commercial law is based on Swiss law, whilst the Civil, Criminal and Criminal Procedure Codes follows to Austrian models. Until the end of the 1980s, the Austrian Criminal Code of 1852 was applied in Liechtenstein. The existing Criminal Code [6, 7] was enacted by the Liechtenstein Parliament on 24 of June, 1987 and entered into
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force on 1 of January, 1989 (hereinafter the "Criminal Code of Liechtenstein"). It is necessary to point that the afore mentioned Criminal Code is an inclusion of the principle "No punishment without law" (§1), the principle that only the law can define an offence and prescribe a penalty as well as mentioned in the Article 7 of the European Convention on Human Rights [8, 9].
Criminal Code of Liechtenstein (Strafgesetzbuch (StGB)) divides into three
parts:
1. General Part (Sections 1-9, §1-74g) provides general provisions, classification of offences, penalties, forfeiture and preventive measures, sentencing etc.
2. Special Part (Sections 1-25, §75-321l) provides composition of offences.
3. Final Part (§322) sets on entering into force of this Act on 1 January 1989.
Pursuant to the §17 of the Criminal Code of Liechtenstein, offences
classificates to intentional acts carrying a penalty of imprisonment for life or of more than three years shall be deemed crimes and misdemeanours including all other offences, unless otherwise specified by supplementary criminal laws. In turn, Criminal Code of Uzbekistan provides classification of the offences on the grounds of their character and degree of social danger into offences with insignificant social danger, less serious, serious and especially serious offences (article 15).
Thus, we will perform the following comparative analysis of the Criminal Code of Liechtenstein in terms of mitigation of punishment, as well as taking into account the criminal defences.
Firstly, article 54 of the Criminal Code of the Republic of Uzbekistan enacted on 22 of September, 1994 and entered into force from 01 of April, 1995 (hereinafter the "Criminal Code of Uzbekistan") and Criminal Code of Liechtenstein determines practically similar general principles (Allgemeine Grundsätze) for composition of punishment. In accordance with the paragraph 2 of the §32, when sentencing, the court shall weigh the aggravating and mitigating causes, to the extent they had not already determine the penalty provided for, and also take account of effects of the penalty and other expected consequences of the act on the future life of the perpetrator in society. It shall especially be taken into account to what extent the act is due to a negative or indifferent attitude of the perpetrator toward legally protected values and to what extent it is due to external circumstances or motives that might also prompt a person committed to the legally protected values to commit the offence.
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Culpability of the perpetrator shall be the basis for sentencing, says the paragraph 1 of §32 of the Criminal Code of Liechtenstein, by this setting in our view the most general principle of sentencing. In particular, article 24 (innocent harm) of the Criminal Code of Uzbekistan sets that, an act shall be recognized as committed by innocence, if a person, who committed it, was not aware of, should not have not to and could not have realized a socially dangerous nature of his act, or did not foresee socially dangerous consequences thereof, and, according to circumstances of the case, should not have to and could not have foreseen them.
Secondly, Criminal Code of Liechtenstein as well as Criminal Code of Uzbekistan stipulates a provisions on the retroactive effect of criminal law. Especially, the criminal laws shall be applied to acts committed after their entry into force. They shall be applied to acts committed earlier if the laws in force at the time of the act, in their overall effect, were not more favorable to the perpetrator, according to §61 of the Criminal Code of Liechtenstein says.
Detailed provisions on application of criminal law in time provides also Criminal Code of Uzbekistan, which state that, a law decriminalizing an act, mitigating a penalty or otherwise improving the position of a person, shall be retroactive, that is, shall be applied to persons, who had committed the appropriate act before this law came into effect, as well as to persons, who are serving their penalty or have served it with non-cancelled conviction. A law criminalizing an act, severing a penalty or otherwise worsening position of a person, shall not be retroactive (paragraphs 2 and 3 of the article 13).
Thirdly, both of Criminal Codes of Liechtenstein and Uzbekistan stipulates the list of mitigating factors called as "circumstances mitigating the punishment" at the Criminal Code of Uzbekistan and "special mitigating causes" (Besondere Milderungsgrunde) at the Criminal Code of Liechtenstein.
In particular, as per of paragraph 1 of the §34 of the Criminal Code of Liechtenstein, it shall be a mitigating cause if the perpetrator:
1. Committed the act after reaching the age of eighteen, but before the age of twenty-one, or if he committed the act under the influence of an abnormal mental state, if he is of feeble mind, or if his upbringing was very much neglected;
2. Has so far led a normal life and the act is strikingly contrary to his conduct otherwise;
3. Committed the act for commendable motives;
4. Committed the act under the influence of a third party
or due to fear or obedience;
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5. Made himself liable only because he failed to avert the result in a case where the law provides for a penalty for bringing about the result;
6. Participated only in a subordinate manner in an offence committed by several persons;
7. Committed the act only out of rashness;
8. Committed the act only by letting himself be carried away by a generally understandable extreme emotion;
9. Committed the act enticed more by an especially tempting opportunity rather than with prior purpose;
10. Was caused to commit the act in light of a severe predicament not due to aversion to work;
11. Committed the act under circumstances approaching exclusion of culpability or justification;
12. Committed the act under a mistake of law not excluding culpability (§9), especially if he is being punished for intentional commission of the act;
13. Did not bring about any damage, despite completion of the act, or if the act was only attempted;
14. Voluntarily refrained from causing greater damage, although he would have had the opportunity to do so, or if the damage was rectified by the perpetrator or a third party on his behalf;
15. Earnestly endeavoured to rectify the damage caused or to prevent other negative consequences;
16. Turned himself in, although he easily could have escaped or it was probable that he would remain undiscovered;
17. Made a remorseful confession or, though his statement, contributed substantially to establishing the truth;
18. Committed the act already some time ago and has since shown good behavior;
19. Is affected by the fact that he or someone personally close to him has suffered a considerable bodily harm or damage to health or other grave actual or legal disadvantages due to the act or as a consequence thereof.
Moreover, it shall also be a mitigating cause if the duration of the proceedings conducted against the perpetrator was disproportionately long for reasons not due to the perpetrator or his defence counsel (paragraph 2 of the §34 of the Criminal Code of Liechtenstein).
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In its part, Criminal Code of Uzbekistan stipulates following list of mitigating
factors:
a) voluntary surrender, active repentance, or assistance in offence detection;
b) voluntary expiation of the harm;
c) commission of an offence due to sever personal, family, or other conditions;
d) compulsive offence or offence committed due to financial, seniority, or other dependence;
e) commission of an offence in a heat of passion caused by violence, great insult, or other wrongful act of a victim;
f) commission of an offence in excess of necessary self-defense, extreme necessity, infliction of injury when apprehending a person having committed a socially dangerous act, justifiable professional or economic risk;
g) commission of an offence by a minor;
h) commission of an offence by a pregnant woman;
i) commission of an offence under influence of wrongful or amoral behavior of a victim.
However, unlike the Criminal Code of Liechtenstein, Criminal Code of Uzbekistan establishing as a rule on that, during determining a penalty, a court may recognize a mitigating factor not envisaged by afore mentioned 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 shall not be taken into account throughout determining a penalty (paragraph 3 of the article 55).
According to above mentioned provisions on that the list of mitigating factors is not an exhaustive, we can come to a conclusion that the judges in Uzbekistan are provided with the right to wider judicial discretion.
Except the mitigating factors, Criminal Code of Uzbekistan also stipulates a "circumstances considerably decreasing a degree of social danger of a committed offence" and "exceptional cases". So that pursuant to the article 57 (imposition of lighter penalty):
A court, taking into account circumstances considerably decreasing a degree of social danger of a committed offence, may, at exceptional cases, impose a penalty below the lower limit of severity envisaged by an Article of the Special Part of this Code for an offence in question, or another, more lenient penalty not envisaged by an appropriate Article (paragraph 1).
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On the same grounds, a court may abstain from imposing a mandatory additional penalty envisaged by an Article of the Special Part of this Code (paragraph
As circumstances considerably decreasing a degree of social danger of a committed offence may be recognized a circumstances characterizing in the aggregate an act, personality of a guilty person, degree and form of his guilt, his behavior before and after the offence, grounds for and contributing circumstances of the offence (paragraph 3).
Criminal Code of Liechtenstein and Criminal Code of Uzbekistan doesn't provide legal definition for the terms "special mitigating causes", "circumstances mitigating the punishment" and "exceptional cases".
Fourthly, Criminal Code of Uzbekistan establishes the special provisions on mitigation of punishment, stipulated in the articles 57 (imposition of lighter penalty), 57-1 (imposition of punishment in case of active repentance of the perpetrator of the deed) and 57-2 (imposition of punishment for offences for which a plea agreement has been concluded).
Successively, the Criminal Code of Liechtenstein provides for several of the following special provisions regarding the institution of mitigation of punishment as well as extraordinary mitigation in case of predominance of mitigating causes (§41) and extraordinary mitigation of penalty in case of cooperation with the law enforcement authorities (§41a).
Each afore mentioned separate rule on mitigation of punishment on the process of sentencing will be considered alternately. In this case as well as in present paper we are not considering mitigation of punishment on the process of its execution that is serving a sentence.
So, Criminal Code of Uzbekistan provides the following rules on mitigation of punishment except of afore mentioned provisions on imposition of lighter penalty established in the article 57:
I. Imposition of punishment in case of active repentance of the perpetrator of the deed (article 57-1):
If there are circumstances mitigating the punishment provided for in sub-paragraphs "a" and "b" of paragraph one of Article 55 of this Code, and there are no circumstances aggravating the punishment provided for in paragraph one of Article 56 of this Code, the term or amount of punishment may not exceed two-thirds of the maximum penalty provided for by the
2).
relevant article of the Special Part of this Code. This rule does not
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apply to persons who have committed offences related to premeditated murder under aggravating circumstances (part two of article 97) and terrorism (part three of Article
II. Provisions on imposition of punishment for offences for which a plea agreement has been concluded (article 57-2) has been amended to Criminal Code relatively recently on the 18 of February, 2021:
The term or amount of punishment imposed for offences for which a plea agreement has been concluded may not exceed half of the maximum punishment provided for by the relevant article (part) of the Special Part of this Code.
And Criminal Code of Liechtenstein stipulates for following provisions on the mitigation of punishment:
I. Extraordinary mitigation in case of predominance of mitigating causes (Ausserordentliche Strafmilderung bei Überwiegen der Milderungsgründe) (§41):
1) In the event that mitigation causes significantly outweigh the aggravating causes and if there is reasonable prospect that the perpetrator will not commit any further offences even if a sentence lower than the legal minimum sentence is imposed, the following sentences may be imposed:
1. a sentence of no less than one year imprisonment for acts punishable by imprisonment for life or imprisonment of 10 to 20 years or imprisonment for life;
2. a sentence of no less than six months of imprisonment for acts not punishable by imprisonment for life but punishable by a minimum of at least 10 years of imprisonment;
3. a sentence of no less than three months of imprisonment for acts punishable by a minimum of at least five years of imprisonment;
4. a sentence of no less than one month of imprisonment for acts punishable by a minimum of at least one year of imprisonment;
5. a sentence of no less than one day of imprisonment for acts punishable by a minimum of less than one year of imprisonment (paragraph 1).
2) Under the requirements of paragraph 1 sub-paragraphs 3 and 4, a minimum term of six months of imprisonment shall be imposed if the offence resulted in the death of a person (§7 paragraph 2), even if this circumstance already determines the penalty provided for (paragraph 2).
3) §43 (conditional suspension of sentences) and §43a (conditional suspension of part of a sentence) may also be applied if a penalty
of imprisonment of more than two years or three years, but not
155).
more than five years is imposed or would have to be imposed, if
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the mitigating causes significantly outweigh the aggravating causes and if there is a reasonable prospect that the perpetrator will not commit any further offences even if such penalty is imposed (paragraph 3).
II. Extraordinary mitigation of penalty in case of cooperation with the law enforcement authorities (Ausserordentliche Strafmilderung bei Zusammenarbeit mit den Strafverfolgungsbehörden) (§41a):
1) If the perpetrator of an act punishable under §277 (Criminal conspiracy), §278 (Criminal group), §278a (Criminal organization) or §278b (Terrorist group) or of a punishable act that is connected to such a conspiracy, group, or organization discloses to any law enforcement authority that he has knowledge of facts the disclosure of which significantly contributes to
1. the elimination or a significant reduction of the danger resulting from the conspiracy, group or organization,
2. helping to uncover such a punishable act beyond his own contribution to the act, or
3. tracing a person who has been involved in such a conspiracy in a leading capacity or has been active in such a group or organization in a leading capacity a sentence below the legal minimum penalty may be imposed within the limits set by §41, if this corresponds to the significance of the disclosed facts in proportion to the culpability of the perpetrator. §41 paragraph 3 shall apply mutatis mutandis (paragraph 1).
2) Paragraph 1 shall nevertheless apply to a perpetrator whose knowledge relates to punishable acts not governed by the criminal laws of Liechtenstein, provided that the provision of legal assistance would be permissible (paragraph 2).
III. Subsequent mitigation of the penalty and forfeiture (Nachträgliche Milderung der Strafe und des Verfalls) (§ 31a):
1) If circumstances that would have led to a more lenient sentence emerge or become known after the conviction, the court shall mitigate the sentence appropriately (paragraph 1).
2) If the personal circumstances or economic ability of a person sentenced to a monetary penalty deteriorate in more than a merely minor manner after the conviction, the court shall reassess the amount of the daily rates of the remaining monetary penalty within the limits set by § 19 paragraph 2 (Monetary penalties), unless the sentenced person intentionally caused the deterioration,
including by failing to take up reasonable employment (paragraph
2).
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4) If circumstances arise or become known after the conviction, which, in case of their existence at the time the judgement was rendered, would have led the court to refrain from forfeiture or would have led it to subject assets of a lesser value to forfeiture, the court shall modify its decision accordingly (paragraph 4).
IV. Concurrence of offences (Zusammentreffen strafbarer Handlungen) (§
28):
1) If a person, by carrying out an act or several independent acts, has committed multiple offences of the same or different kinds, and if these offences are adjudicated at the same time, then a single penalty of imprisonment or monetary penalty shall be imposed where the concurring laws provide only for penalties of imprisonment or only for monetary penalties. This penalty shall be determined in accordance with the law providing for the highest penalty. Other than in cases of extraordinary mitigation of the penalty, however, no lesser penalty than the highest minimum penalty provided for in the concurring laws may be imposed (paragraph 1).
Fifthly, the Criminal Code of Uzbekistan pays separate attention to the issues of responsibility of minors, allocating separate chapters to these issues (Section Six of the General Part, Chapters XV-XVI). In addition, by the Law of the Republic of Uzbekistan dated 7 of December, 2021 No. LRU-735 "On amendments and supplements to certain legislative acts of the Republic of Uzbekistan in connection with further improvement of the system of ensuring guarantees of the rights of the child", the age of criminal responsibility of minors was raised from 13 to 14 years (paragraph 2 of article 17). In accordance with the article 17, physical persons may be involved as subjects of criminal liability from the age fourteen, sixteen and eighteen years accordingly for the relevant compositions of offences. Section Six of the Criminal Code of Uzbekistan is called as "Criminal liability of minors" and sets the system of penalty for physical persons committed an offence under eighteen years of age. Besides, Criminal Code of Uzbekistan provides enough much privileges for minors as:
1. When considering an issue of recognition of a person as a special dangerous recidivist, convictions by courts for offences committed by the person under the age of eighteen, as well as withdrawn or cancelled convictions in the procedure established by law, shall not be taken into consideration (paragraph 6 of the article 34).
2. A long term of imprisonment as well as life imprisonment may not be imposed on a person who has
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committed an offence under the age of eighteen (paragraph 4 of the article 50, paragraph 3 of the article 51) etc.
And §74 of the Criminal Code of Liechtenstein provides following definitions regarding minors:
1. Under-age: any person who has not yet reached the age of fourteen;
2. Adolescent: any person who has reached the age of fourteen, but not yet the age of eighteen;
3. Minor: any person who has not yet reached the age of eighteen.
Moreover, Criminal Code of Liechtenstein sets provisions on "Sentences of
imprisonment for persons under the age of twenty-one" as follows:
Penalties of imprisonment that are more severe than twenty years may not be imposed on a person who, at the time of the act, had not yet reached the age of twenty-one. A penalty of imprisonment of five to twenty years shall be imposed in lieu of a penalty of imprisonment for life or a penalty of imprisonment of ten to twenty years or for life. A minimum penalty exceeding imprisonment of one year shall be reduced to one year, and a minimum penalty of one year shall be reduced to six months. However, to the extent that no penalty more severe than imprisonment of five years is provided for, no minimum penalty shall apply (§36).
In this regard, in our view Criminal Code of Uzbekistan provides much more detailed provisions on minor's criminal liability than relevant Cod e of Liechtenstein. So, there are Juvenile courts (Jugendgericht) acting in Liechtenstein, the article 6 of the Law on Judicial Organization (Gerichtsorganisationsgesetz (GOG)) of says [10].
Sixthly, the rules on imposition of punishment for an uncompleted offence under the Criminal Code of Liechtenstein are provided only for attempted offence (paragraphs 1 and 2 of the §15), while there is no question on criminal liability of preparation for an offence as well as the rules of mitigation of punishment for uncompleted offence. At the same time interesting rule is mentioned regarding this issue on that, an attempt and any participation in an attempt shall not be punishable if completion of the act was not possible under any circumstances, for lack of personal qualities or circumstances that the law requires the person acting to fulfil or given the type of the action or the type of the object against which the act was perpetrated (paragraph 3 of the §15).
And Criminal Code of Uzbekistan provides much more detailed rules of criminal liability to preparation for offence and Criminal Attempt (article 25) as well as the following mitigation of punishment
provisions:
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I. When imposing punishment for an uncompleted offence, the court, governed by the general principles of sentencing, also takes into account the severity of the offence, the degree of implementation of the criminal intent and the reasons why the offence was not completed (paragraph 1 of the article 58).
II. The term or amount of punishment for preparation for an offence and attempted offence may not exceed three-quarters of the maximum punishment provided for by the relevant article of the Special Part of this Code. This rule does not apply when imposing punishments:
a) to particularly dangerous repeat offenders, members of an organized group or criminal community;
b) for uncompleted offences against peace and security, as well as offences related to:
- premeditated murder under aggravating circumstances;
- rape or forcible satisfaction of sexual needs in an unnatural form in relation to the victim, obviously for the perpetrator who has not reached the age of fourteen;
- smuggling of nuclear, chemical, biological and other types of weapons of mass destruction, materials and equipment, radioactive materials that can obviously be used in its creation (paragraph 2 of the article 58).
III. A sentence of life imprisonment cannot be imposed for an uncompleted offence (paragraph 3 of the article 58).
Seventhly, the institute on the "withdrawal from the offence" in the Criminal Code of Liechtenstein is associated with an attempt pursuant to the following rules:
1) The perpetrator shall not be punished for an attempt or participation therein if he voluntarily abandons the carrying out or, if several persons are involved, prevents the carrying out or voluntarily averts the results thereof (paragraph 1 of the
2) The perpetrator shall likewise not be punished if, without his intervention, the carrying out or the result does not occur, yet he is unaware of this and has made a voluntary and earnest effort to prevent the carrying out or avert the result (paragraph 2 of the §16).
For its part, paragraph 2 of the article 26 and paragraph 5 of the article 30 of the Criminal Code of Uzbekistan provides a direct indication that withdrawal (voluntary refusal) from the commission of an offence excludes criminal liability. Furthermore, a person who voluntarily refused to complete an offence is liable under this Code if the act actually committed by
§16);
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him contains all the signs of a composition of the offence (paragraph 3 of the article 26).
Eighthly, Criminal Code of Liechtenstein (§12) and Criminal Code of Uzbekistan (paragraph 1 of the article 30) similarly sets a treatment of all participants as perpetrators meaning that participants shall be punished by penalty established for as perpetrator. But difference conditions regarding the taking into account of the Characteristics and circumstances of participiants individually provided both of afore mentioned Criminal Codes.
In accordance with the §14 of the Criminal Code of Liechtenstein:
1) If the law makes the criminal liability or the severity of the penalty dependent on special personal characteristics or circumstances of the perpetrator relating to the wrongfulness of the act, then the law shall be applied to all participants even if those characteristics or circumstances apply only to one of them. If, however, the wrongfulness of the act depends on the person with the special personal characteristics or circumstances committing the act directly or otherwise participating in the act in a specific manner, then that condition must additionally be met.
2) If, however, the special personal characteristics or circumstances relate solely to culpability, then the law shall be applied only to the participants with those characteristics or circumstances.
And in accordance with the paragraph 4 of the article 58 of Criminal Code of Uzbekistan, on imposition a penalty for a joint offence, a court shall take into account a nature and degree of participation therein of each of guilty persons. Mitigating and aggravating circumstances relating to personality of each accomplice, shall be taken into account by a court when inflicting a penalty on that accomplice. Furthermore, Criminal Code of Uzbekistan provides more clarified provisions on participiant's criminal liability (articles 27-31).
Ninth, General Part of the Criminal Code of Liechtenstein as well as the same Part of the Criminal Code of Uzbekistan provides a number of criminal defenses, exluding for criminal liability. In particular, Criminal Code of Liechtenstein sets the following circumstances exluding criminal liability in case of complying to certain conditions:
1. Commission an offence in self-defence (Notwehr). No person shall be deemed to act unlawfully if such person merely uses the self-defence necessary to repel a present or immediately imminent, unlawful attack against his or another person's life, health, physical integrity, liberty or property. The act shall not be deemed justified, however, if it is
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evident that the attacked person is only at risk of a minor disadvantage and if the defence is disproportionate, especially in light of the seriousness of the impairment of the attacker necessary to repel the attack (Notwehr) (paragraph 1 of the §3).
2. Absence of culpability in action. No person may be punished unless such person acts culpably (Keine Strafe ohne Schuld) (§4).
3. Mistaken belief in justificatory facts (Irrtümliche Annahme eines rechtfertigenden Sachverhaltes). Any person who mistakenly believes in facts that would render the act lawful may not be punished for intentional commission. Such person shall be punished for negligent commission if the mistake is due to negligence and the negligent commission carries a penalty (§8).
4. Mistake of law (Rechtsirrtum):
- Any person who does not recognize the wrongfulness of the act because of a mistake of law shall not be deemed to act culpably if such person cannot be blamed for the mistake (paragraph 1 of the §9).
- The perpetrator shall be blamed for the mistake of law if the wrongfulness was as easily recognizable for the perpetrator as for anyone else or if the perpetrator did not acquaint himself with the relevant provisions, even though he would have been obliged to do so in light of his profession, occupation or other circumstances (paragraph 2 of the §9).
- Where the perpetrator must be blamed for the mistake, the penalty provided for the intentional act shall be imposed if the perpetrator acts intentionally, and the penalty for the negligent act if the perpetrator acts negligently (paragraph 3 of the §9).
5. Exculpatory situation of necessity (Entschuldigender Notstand):
- Any person who commits a punishable act to avert an immediately imminent, substantial disadvantage from himself or another person shall be exculpated if the damage threatened by the act is not disproportionately more severe than the disadvantage the act is meant to avert, and if a person in the perpetrator's situation who is committed to the legally protected values could not be expected to behave differently (paragraph 1 of the §10);
- The perpetrator shall not be exculpated if he consciously exposed himself to the danger without any reason recognized by the legal order. The perpetrator shall be punished for negligent commission if he mistakenly assumed the conditions under which he would have been exculpated for his action, and if that
mistake was due to negligence and if the negligent commission carries a penalty (paragraph 2 of the §10).
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6. Commission an offence in mental incapacity (unzurechnungsfahigkeit). Any person who, at the time of the act, because of mental illness, a mental disability, profound consciousness disorder, or other severe psychological disorder equivalent to any of these conditions is incapable of realizing the wrongfulness of his act or of acting in accordance with that realization shall be deemed to not act culpably (§10).
7. An attempt and any participation in an attempt shall not be punishable if completion of the act was not possible under any circumstances, for lack of personal qualities or circumstances that the law requires the person acting to fulfil or given the type of the action or the type of the object against which the act was perpetrated (paragraph 3 of the §15).
8. Lack of punishable nature of the act (Mangelnde Strafwurdigkeit der Tat). Where an act to be prosecuted ex officio carries only a monetary penalty, a penalty of imprisonment not exceeding three years, or such a penalty of imprisonment and a monetary penalty, the act shall not be punishable if 1. the culpability of the perpetrator is minor, 2. the act entailed no or only insignificant consequences or, insofar as the perpetrator at least made an earnest effort to that effect, the consequences of the act were largely eliminated, rectified or otherwise compensated, and 3. no punishment is necessary to prevent the perpetrator from committing offences or to deter others from committing offences (§42).
In turn, the Criminal Code of Uzbekistan provides for such criminal defenses, excluding the criminality of the act as the minor nature of an act; self-defense; extreme necessity; causing harm during the detention of a person who committed a socially dangerous act; execution of an order or other duty; justified professional or economic risk; commission of an act as a result of physical or mental coercion or threat (Article 36), more than half of which are not provided in the Criminal Code of Liechtenstein.
The criminal defence provided in the §42 of the Criminal Code of Liechtenstein is like to the defence from the Criminal Code of Uzbekistan on the minor nature of an act (articles 35-36).
Moreover, if Criminal Code of Uzbekistan provides the mitigating factors connected with criminal defences such commission of an offence in excess of necessary self-defense, extreme necessity, infliction of injury when apprehending a person having committed a socially dangerous act, justifiable professional or economic risk (sub-paragraph "e" of the paragraph 1 of article 55) which may mitigate the punishment, than Criminal Code of
Liechtenstein stipulaes the rule regarding to self-defence only on
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that, any person who exceeds the justified degree of defence or makes use of an evidently inappropriate defence (paragraph 1 of the §3) shall, if this occurs merely due to consternation, fear or fright, be punished only if the excess is due to negligence and the negligent act carries a penalty (paragraph 2 of the §3).
Tenth, Criminal Code of Liechtenstein (§11) as well as the Criminal Code of Uzbekistan (Article 18) considers the state of "mental incapacity" as an criminal defense excluding criminal liability, but additionally Criminal Code of Uzbekistan implies the possibility of applying compulsory medical measures. it should be noted that Criminal Code of Liechtenstein also provides a procedure on institution for mentally abnormal offenders placement (§21).
Eleventh, Criminal Code of Liechtenstein does not consider the commission of an offence in an state of diminished responsibility, although the article 18-1 of the Criminal Code of Uzbekistan explicitly stipulates that persons in an state of diminished responsibility are liable, and compulsory medical measures may be applied to such persons by a judge simultaneously with criminal punishment.
Based on the results of a comparative analysis of the institute of mitigation of punishment, it can be argued that in this regard, both of the countries belongs to Romano-German legal family and the Criminal Code of Liechtenstein and the Criminal Code of Uzbekistan have many similar sides such as stipulating the list of mitigating factors and criminal defences, special provisions on mitigation of punishment as well as differences as of provision detailed regulation on minor's criminal liability etc. Moreover, we may suppose that on the basis of a rule provided in the paragraph 2 of the article 55 the judges in Uzbekistan have right to wider judicial discretion.
As per of results of a comparative analysis, we propose to adopt some of the provisions on mitigation of punishment from Criminal Code of Liechtenstein and implement to Criminal Code of Uzbekistan, which, from our point of view, will certainly contribute to the improvement of the criminal law norms of the national criminal law:
I. To implement the provisions of the sub-paragraphs 2, 3, 13, 16 of the §34 paragraph 1 of Criminal Code of Liechtenstein to the article 55 (circumstances mitigating the punishment) of Criminal Code of Uzbekistan by supplementing the paragraph 1 by the sub-paragraphs "k", "l", "m" and "n" in the following edition:
"k) has so far led a normal life and the act is strikingly contrary to his conduct otherwise;
l) committed the act for commendable motives;
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m) did not bring about any damage, despite completion of the act, or if the act was only attempted;
n) turned himself in, although he easily could have escaped or it was probable that he would remain undiscovered".
II. To implement the provisions of the §34 paragraph 2 of Criminal Code of Liechtenstein to the article 55 (circumstances mitigating the punishment) of Criminal Code of Uzbekistan by supplementing the paragraph 4 in the following edition:
"It shall also be a circumstance, mitigating the punishment if the duration of the proceedings conducted against the perpetrator was disproportionately long for reasons not due to the perpetrator or his defence counsel".
III. To implement the provisions of the §31a paragraph 1 of Criminal Code of Liechtenstein to the article 55 (circumstances mitigating the punishment) of Criminal Code of Uzbekistan by supplementing the paragraph 5 in the following edition:
"If circumstances that would have led to a more lenient sentence emerge or become known after the conviction, the court shall mitigate the sentence appropriately".
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 Confiscation (§19a), Forfeiture (§20), No forfeiture (§20a), Extended forfeiture (§20b), No extended forfeiture (§20c), Liability of legal persons (Section 9, §74a - §74g).
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