Republic of Uzbekistan for years of independence confidently solves put before itself «the construction purpose in the country of the free and independent, democratic state and an open civil society, cardinal and deep reforming of economy, realization of the strong social policy directed on protection of interests of the people».
Thus, position of the woman in a society is one of the major indicators characterizing a society, level of its social, cultural, economic and political development. In turn the criminal policy spent by the state concerning the citizens, also reflects degree of its perfection, and speaks about on what degree of social development it is. In this connection it is represented interesting to analyze as operating criminal and criminally-execute of legislation of Republic of Uzbekistan concerns to such not to the smallest group of the population, as women.
Any democratic state recognizes a priority of norms of international law. Thus norms national or the internal law in need of conformity to material norms of international law can concretize those or its other positions, and also defines process of their realization.
An establishment of main principles of appointment and execution of criminal punishments concerning women at the international level is probably only in general.
Practical fastening of features of application of criminal punishments concerning women occurs only in the criminal and criminally-executive legislation of the concrete country, in particular, in the Criminal code of Republic of Uzbekistan and the Criminally-executive code of Republic of Uzbekistan.
It is necessary to notice that during the last years the criminality in Republic of Uzbekistan, since 2010 on the present was reduced to 0.8 %, the criminality made by women for this period was reduced to 9.1 %. Today the criminality, made makes women less than 15 % from all criminality, made in the country.
According of legislation of Republic of Uzbekistan in criminal sentencing of the man and the woman equate in the rights. Existing “privileges” at appointment of punishments are dictated only by pregnancy of women or presence of children.
It is necessary to note especially presence in the operating Criminal code of Republic of Uzbekistan of such structure of a crime, as «a premeditated murder mother of the newborn child» (item 99) which similar norm completely (a disposition and the sanction) is transferred from item 83 of Criminal code of Uzbekistan Soviet Socialist Republic.
Article 99 of the Criminal code of Republic of Uzbekistan establishes punishment, for fulfillment of murder by mother of the newborn child in the form of imprisonment for the term up to three years (from half a year by the general rule). It is necessary to notice that similar norms of the right are available and in criminal codes of some countries of the former union republics, in particular, such as Kazakhstan, Latvia, Lithuania, Russia and others.
Besides, in a number of the CIS countries responsibility is included in Criminal codes for infanticide which at us in Republic of Uzbekistan is not present.
Some explanatories should be made concerning concepts «infanticide» and «murder by mother of the newborn child».
The concept «infanticide» is much wider than concept of “murder by mother of the newborn child». After all infanticide can mean not only murder of the newborn child, but also the child more advanced age. At the same time the subject of structure of a crime infanticide can appear not only mother, but also the father of the child. In this connection, leaving of the legislator in this case from the term «infanticide» and concept introduction «murder by mother of the newborn child» removes many questions.
Having entered such structure of a crime as «murder by mother of the newborn child», the legislator, in this case, first of all, has risen on protection of mother. It would seem that it has changed to itself (himself) and in relation to the newborn child has shown not the humane relation.
However thus the legislator has confirmed the humane relation to the woman, having taken into consideration its specific condition in which it is after the delivery and which can be correlated with an affect condition.
In connection with stated existence of independent structure of a crime «murder by mother of the newborn child» is represented quite proved.
According to Criminally-remedial code of Republic of Uzbekistan more humane character in comparison with former (Criminal code item 44 of Criminal code of Uzbekistan Soviet Socialist Republic carry rules of a delay of serving of punishment to pregnant women by the time of execution of a sentence and presence at condemned the juvenile child – before achievement of three-year age by it (item 533 of penal procedural code of Republic of Uzbekistan) about what in detail it will be told more low. Under operating Criminally-remedial code of Republic of Uzbekistan the circle of the condemned women to which the delay of serving of punishment can be given has extended.
It is provided that it can be applied to all condemned pregnant women by the time of execution of a sentence and to the women having juvenile children – before achievement of three-year age by it. The delay of execution of a sentence to especially dangerous recidivists and to the persons who have made especially grave crimes is not applied.
Today the age of the child by granting of mother of a delay of serving of punishment is limited to three years, certainly it is progress. But, would be expedient that, first, such possibility gave to the women having children of preschool age (till seven years); secondly, to include these positions in Criminal code of Republic of Uzbekistan, accordingly having withdrawn them from item 533 of penal procedural code of Republic of Uzbekistan.
As shows the analysis of the operating criminal legislation, its norms as a whole correspond to the international standards. However it is necessary to provide a remedial procedure of effective protection of women in the legislation of Republic of Uzbekistan. Thus it is necessary to consider that presence of accurately debugged mechanism of judicial and administrative protection of the rights and freedom of women is one of the major components of their realization.
Formation of such mechanism should not interfere with infringement of any rights of the woman. And, at last, creation of the specialized courts which are engaged in protection of infringements of the rights of women would play a positive role in respect of maintenance of their legitimate rights and interests.
Thereupon it is necessary to stop on such institute which is even more often applied recently in criminal proceedings sphere in the countries of Europe and the United States of America, as regenerative justice. What does it mean?
In materials of the international conference on the reform of criminal punishments which was passing in London in 1999, it is noticed that «regenerative justice should be accepted corresponding instances as the preferable form of process of criminal justice because it strengthens a social fabric and will possibly lead to reduction of level of use of imprisonment».
Regenerative justice concerns alternative ways of a resolution of conflicts which, in turn, represent possibilities of deducing of conflicts from criminally-remedial sphere and help the parties to resolve them by means of the neutral person, the so-called intermediary.
At the same time alternative ways of a resolution of conflicts can be considered as a version of informal justice.
Informal justice is based on a principle of reconciliation of the parties. It assumes active participation of the parties in the resolution of conflict and finally is directed on restoration of mutual relations between the criminal, a victim and the state.
The named procedures are successfully applied, for example, in Poland, Czech Republic; start to be applied in the USA. In particular, in the item of item 309-319 of the Criminal code of the Czech Republic it is said that «the institute of settlement (reconciliation) is applied when the state has no obvious interest in applying the criminal sanction, and prefers possibility to conclude the contract between the offender and the party which has suffered damage.
Reconciliation possibility can be approved court when the offence does not carry difficult character from the point of view of social consequences, and under a condition if the offender pleads guilty to the shown charge. It/it should undertake necessary steps for compensation (indemnification) of the damage caused by its/its actions, and should be ready to bring the corresponding material (financial) contribution for use for needs of community».
It is necessary to notice that in the operating Criminal code of Republic of Uzbekistan there is item 66 which and is called «Clearing of a criminal liability in connection with reconciliation». It means that the operating criminal legislation in this sphere also is brought into accord with the international standards. In mentioned item 66 of criminal code of Republic of Uzbekistan possibility for the persons who have committed a crime not representing big public danger is established, to be released from a criminal liability if such person has reconciled with suffered and has smoothed down done suffered harm.
Reconciliation with suffered is one of the bases of clearing of a criminal liability. And in former of Republic of Uzbekistan Soviet Socialist Republic of 1959 clearing of a criminal liability was provided, but only on affairs of private charge, i.e. affairs which could be raised only under the complaint of the victim and stopped in case of reconciliation of the victim with the accused.
In conformity with operating of Criminal code of Republic of Uzbekistan reconciliation with the suffered can be applied now to much more to a wide range of persons – to all persons who have committed crimes not representing big public danger, i.e. deliberate or careless acts for which fulfillment the maximum punishment provided by Criminal code of Republic of Uzbekistan, does not exceed five years of imprisonment.
Besides, this norm can be applied only to the persons who have committed a crime for the first time. It means that earlier the person could not be involved in a criminal liability, or was involved, but not condemned, or the previous conviction is removed or extinguished.
However, in our opinion, the most important condition of reconciliation is necessity to smooth down the done harm. Such actions can be expressed in compensation of cost of the destroyed property, or in elimination of the caused harm by own strength and means.
It is necessary to underline that the law provides only probably – clearings of a criminal liability. Thus law enforcement bodies should estimate comprehensively sincerity of the stated desire suffered to reconcile with the offender and to find out, whether it is received by threats, blackmail and other illegal actions.
At the same time in item 66 of Criminal code of Republic of Uzbekistan probably such reconciliation is not told about at what stage: or at a preliminary investigation stage, or during proceeding. It is defined in item 583 of Criminal code of Republic of Uzbekistan where it is told that the statement for reconciliation can be submitted suffered (the civil claimant) or its lawful representative at any stage of inquiry and preliminary investigation, and also proceeding, but before court removal to a consultative room.
The interrogated experts consider possible such reconciliation in time punishment servings condemned. In this connection it is expedient to offer, that the legislator has included in item 661 of Criminal code of Republic of Uzbekistan such reconciliation at a stage of serving of punishment.
However nevertheless it is represented that procedure of reconciliation of the criminal with suffered before ad judgment is simpler than after the sentence is already pronounced, the criminal is condemned and imprisonment leaves. In this case, if the victim decides to reconcile with condemned, the judgment about clearing of the further serving condemned punishments in the form of imprisonment obviously is required.
In that case it will be necessary to add with corresponding articles both Criminal and Criminally-executive codes of Republic of Uzbekistan.
Chapter of XXII Criminal code of Republic of Uzbekistan fixing the bases of clearing of punishment, reconciliation with suffered is necessary to add item 66 of Criminal code of Republic of Uzbekistan establishing possibility of clearing of serving of punishment in connection with reconciliation with suffered, and item 163 Criminal code of Republic of Uzbekistan by one more point, providing as the basis of clearing of serving of punishment.
It is necessary to underline that will be obvious to be applied more often such procedure just concerning women-condemned, as committing crimes not representing big public the dangers.
However, in our opinion, if to give such additional possibility to be released from punishment serving only to the woman, it will break the principle of equality operating at an execution of the punishment, and will put the condemned women in exclusive position in comparison with men.
Therefore such possibility should be at all serving time in the form of imprisonment – both men, and women in this connection in item 66 of Criminal code of Republic of Uzbekistan and item 163 Criminal executive code of Republic of Uzbekistan as the subject to allocate only women does not follow.
As we see, the basic emphasis in reconciliatory procedure in the countries of Europe becomes on damage compensation. In our opinion, at application of these procedures in Republic of Uzbekistan, considering not absolutely high material level both all population of the country, and the majority of offenders and especially women-criminals, it is necessary to do accent not on compensatory character of reconciliatory procedures, namely on restoration of relations between a victim, the criminal, and also the state.
Especially actual, in our opinion, application of regenerative justice can become for women as already it was told above, isolation of the woman from a society at times turns around heavier consequences for it, its children and relatives, than the criminal activity made by it. However speech here can go only about crimes not representing to the big public danger.
About introduction of regenerative justice in criminal legal proceedings it is even more often told and at the international conferences. In our opinion, reconciliation of the parties becomes possible only at use of regenerative manufacture with attraction to this work of intermediaries.
Thereupon experience which is used in penitentiary establishments of Germany, in particular, in Nordrhein-Westfalen deserves approval. In these establishments there is an institute of so-called instructors which work with prisoners on public principles. They help prisoners with training, in development of professional skills, prepare them for life on freedom and support to them during the period re socialization. Interest in destiny of the concluded person which official duties do not include execution concerning him punishment, plays a positive role in its correction.
The care of such instructor as practice shows, gives a much bigger positive effect, than the state help in correction of the prisoner and it re socialization Such persons are considered by the state basically as the auxiliary help in realization re socialization of prisoners, and also as additional chance for elimination of a bias of a society in relation to released prisoners. Thus, instructors play as though a role of “the connecting bridge» between freedom and prisoners.
In our opinion, introduction of the described institute of instructors in our establishments on an execution of the punishment could play a positive role in the plan of re socialization condemned and. First of all, women: probably, from the moment of the beginning of preparation of women to them it is necessary to attach such instructor who and was original “bridge” between the released woman and freedom to clearing.
Generalizing told it is necessary to underline the following: the modern criminal and criminally-executive legislation of Republic of Uzbekistan in sphere of appointment and execution of criminal punishment in the form of imprisonment concerning women as a whole corresponds to requirements of the international standards in this area.
Besides, such innovation in sphere of a criminal policy of the countries Western Europe as the informal justice, expressed in forms of regenerative justice and reconciliatory procedures and even more often applied in these countries, in our opinion, deserves for today of the same distribution and in Republic of Uzbekistan.
Created by Guzal Akhmedova