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1121105677
Publisher:
Oscar Publishing Services
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ABSTRACT
The article discusses the rules for the residence of foreign citizens in the Republic of Uzbekistan, legal measures of
influence in practice to combat illegal migration and measures to prevent the consequences of such socially dangerous
acts, statistical data on crimes committed by foreign citizens. In addition, the opinions of scientists conducted
scientific research on the prevention of dangerous consequences and improvement of measures of responsibility for
illegal migration and the criminal elements of illegal migration in order to prevent the socially dangerous
consequences of illegal migration, the creation of a criminal legal basis for achieving the full implementation of the
tasks defined in international acts regarding migration are presented. Some proposals are put forward to improve the
measures to combat crimes by establishing criminal responsibility.
KEYWORDS
Migration, illegal migration, criminal legal measures to combat illegal migration, responsibility for illegal migration,
foreign citizens, international acts, direct object, objective side, mens rea, subject, aggravating circumstances.
INTRODUCTION
It is considered socially dangerous acts such as illegal
migration, the procedure of state administration in the
sphere of migration and violating the rights and legal
interests of migrants, complicating the criminogenic
situation in the regions, creating conditions for the
transit of prohibited items in the country or to other
countries, threating economic stability, a negative
impact on the sanitary-epidemiological situation of the
region, causing social contradictions in society,
increasing corruption risks in migration processes,
violating the integrity of the state border and
threatening the national security of the country. At the
moment, such socially dangerous consequences are
uncontrolled migration processes and illegal entry,
exit, residence of foreign citizens or stateless persons
Research Article
PROSPECTS OF IMPROVEMENT OF CRIMINAL-LEGAL MEASURES TO
COMBAT ILLEGAL MIGRATION
Submission Date:
February 13, 2024,
Accepted Date:
February 18, 2024,
Published Date:
February 24, 2024
Crossref doi:
https://doi.org/10.37547/ijlc/Volume04Issue02-14
Baratova Dilnoza Odiljon kizi
Senior investigator of the Interrogation department under the Office of coordination of the activities of the
internal affairs bodies of Mirzo Ulugbek district, independent researcher of Academy of the Ministry of
Internal Affairs of the Republic of Uzbekistan
Journal
Website:
https://theusajournals.
com/index.php/ijlc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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in the Republic of Uzbekistan, transit through the
territory of Uzbekistan, as well as citizens of the
Republic of Uzbekistan who violate national
legislation, international legal rules and the legislation
of the destination country. It occurs as a result of
entering, staying or transiting other countries or as a
result of the illegal organization of these acts.
It should be noted that currently in our country
appropriate legal-organizational measures have been
taken to combat against such socially dangerous
consequences and to prevent them. For instance,
according to the first part of Article 34 of the Law of
the
Republic of Uzbekistan “On the Legal Status of
Foreign Citizens and Stateless Persons in the Republic
of Uzbekistan”, on June 4, 2021, No. LRU–
692 [10]
(responsibility for offenses), “Foreign citizens and
stateless
persons
committed
crimes
and
administrative offenses on the territory of the Republic
of Uzbekistan shall be prosecuted on the same
grounds as citizens of the Republic of Uzbekistan”. In
the second part of this article was defined that
“Foreign citizens and stateless persons residing
temporarily or permanently in the Republic of
Uzbekistan shall be held administratively liable for
violation of the rules of stay and other offenses
stipulated by the legislation of the Republic of
Uzbekistan and administrative expulsion shall be
applied to them in accordance with the legislation of
the Republic of Uzbekistan, a ban shall be imposed on
their entry into the territory of the Republic of
Uzbekistan, as well as, the period of their stay shall be
reduced”[19].
In addition, in Article 107 of the Law of the Republic of
Uzbekistan “On Population Employment” on October
20, 2020, No. LRU
–
642 (Attracting and using foreign
labor force in the Republic of Uzbekistan) has been
noted that “A foreign citizen entering the Republic of
Uzbekistan to carry out labor activities shall work for
hire in the territory of the Republic of Uzbekistan only
if there is a confirmation received by the employer for
the right of labor activity on the territory of the
Republic of Uzbekistan”.
In the fifth part of Article 108 of this Law defined that
“In case of violations of the conditions of the
certificates of the right to work in the territory of the
Republic of Uzbekistan submitted by employers and
(or) foreign citizens, as well as the legislation of the
Republic of Uzbekistan, appropriate instructions shall
be sent by the labor authority bodies to eliminate the
identified violations, for the time necessary to
eliminate the violations identified in the instructions.
proportional periods should be specified. In the event
of violations by employers and (or) foreign citizens of
the conditions of the provided confirmations for the
right to work in the territory of the Republic of
Uzbekistan, as well as the legislation of the Republic of
Uzbekistan, labor authorities shall send appropriate
in
structions to eliminate the identified violations”[9].
In addition, Article 223 of the Criminal Code of the
Republic
of
Uzbekistan
establishes
criminal
responsibility for illegal departure abroad or entry into
the Republic of Uzbekistan. Subjects of this crime shall
apply citizens of the Republic of Uzbekistan, foreign
citizens and stateless persons.
According to statistics, crimes committed by foreign
citizens in our country are increasing year by year, such
as 205 crimes were committed by foreign citizens in
2020, 258 crimes in 2021, 583 crimes in 2022 and 621
crimes in 2023, which is a 3-fold increase in crimes
committed in 2023 compared to the corresponding
period in 2020. 25-30 percent of crimes committed by
them are serious and extremely serious crimes [15].
It should be said that the Republic of Uzbekistan
ratified the United Nations Convention against
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Transnational Organized Crime[11] on November 15,
2000 and joined the agreement on cooperation in
combat illegal migration among the member states of
the Commonwealth of Independent States, on March
6, 1998, at the regional level.
In addition, although the Republic of Uzbekistan did
not join the Protocol against the Smuggling of
Migrants by Land, Sea and Air, supplementing the
United Nations Convention against Transnational
Organized Crime, on November 15, 2000. Agreements
on “Cooperation in Combating Illegal Migration” with
certain countries based on the requirements specified
in the provisions of this act [16; 17; 18] signed. In these
agreements, individuals and legal entities operating in
the territories of the parties involved in the
organization and implementation of illegal migration,
organization of illegal migration and measures aimed
at cooperation in areas such as determining the
departure and arrival points, routes, carriers and
vehicles used in the implementation, methods of
obtaining and using entry visas and other acts used for
the purpose of illegal migration are defined.
However, in order to effectively implement the tasks of
the agreements, it is necessary to adapt the national
legislation to the requirements of these acts. Because
the legal system of our country uses the phrase illegal
migration, but its concept is not disclosed from a legal
point of view and administrative or criminal
responsibility measures are not provided for it.
However, it is known that any international legal act,
even if it is ratified by the states or if certain measures
are provided for in international documents related to
it, if it is not included in the content of national
legislative acts, it will remain declarative in nature.
From this point of view, in today’s modern conditions,
the problem of illegal migration and combat against it
through criminal and legal means is very important for
Uzbekistan.
This, in turn, it shows that the nessesity to improve
accountability measures to enter and residence of
foreign citizens and stateless persons coming to our
country, to improve the legal rules taking into account
the modern conditions of determining cases of
violation of the law related to carrying out labor
activities in the country, passing through the territory
of the country in transit, as well as, to protect the
rights, liberty s or interests of our citizens who have left
for labor migration, for the illegal actions of officials or
employees of organizations designated as responsible
for the selection and sending of citizens who wish to
perform temporary work activities outside the
Republic of Uzbekistan based on the requirements of
foreign employers, and for providing assistance to
citizens who are in dire straits on the territory of the
Republic of Uzbekistan.
In particular, the nessesity to improve criminal
legislation to prevent the socially dangerous
consequences of illegal migration has been
recognized. According to researcher A.T. Achilov noted
that “It is necessary to organize the concept of illegal
migration in order to protect the legal use of labor
force and legal regulation of activities in this regard, at
a time when the process of integration is continuously
developing in the current world community, to
improve the legislation of the Republic of Uzbekistan
on administrative and criminal responsibility by
introducing rules that determine responsibility for
violating the rules of attracting and using foreign labor
in our republic”[2]. We fully support this opinion of the
researcher.
In addition, in this regard, S.Dj. Djoldasova who studied
migration issues and in addition paid attention. She
does not support the idea of establishing criminal
responsibility on the basis of an independent rule in the
criminal law in order to improve measures of
responsibility for crimes in the sphere of migration,
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rather, the scientist focused on the liberalization of
Article 223 of the current Criminal Code, according to
the author, “As a result of the statistical analysis of
crimes related to Article 223 of the Criminal Code of the
Republic of Uzbekistan and the analysis of the criminal
legislation of foreign countries in this regard, in order
to liberalize criminal responsibility for violating the
legislation in the sphere of migration, for the first time
administrative responsibility for committing the
offense provided for in the first part of this article, the
second within one year establishing criminal
responsibility for committing these actions, in addition,
it is necessary to reduce the duration of the sanctions
of this article in order to ensure the level of social
danger of this offense, the reasonable and
proportionate application of the punishment”[3]. In
fact, at a time when the policy of liberalizing the
criminal law continues in our country and the state
policy aimed at the development of tourism is
consistently carried out, the scientist’s views on
liberalizing Article 223 of the current Criminal Code are
commendable, however, meantime, we believe that in
order to eliminate and prevent the negative
consequences of illegal migration, it is necessary to
improve the criminal law based on the development of
special rules.
On the need to develop a special rule to combat illegal
migration, A.A. Allanova expressed her opinion on the
results of her research. The scientist said that almost all
of the CIS member states are responsible for
organizing illegal migration, The Criminal Code of the
Republic of Uzbekistan should be supplemented with
Article 2231 entitled that “Organization of illegal
migration”[1] and it is appropriate to describe it in the
following way, “Organizing the illegal entry of foreign
citizens or stateless persons into the Republic of
Uzbekistan, their illegal stay in the Republic of
Uzbekistan or their illegal passage through the
territory of the Republic of Uzbekistan shall be
punished by a fine of one hundred to three hundred
times the amount of the base calculation”.
Meantime, the researcher refers that to the special
aggravating elements of this socially dangerous act
and in the second part of this article those actions: a)
by previous concert by a group of individuals; b) by
committed an organized criminal group,
–
shall be
punished with fine for from three hundred to five
hundred times the amount of the base calculation or
restriction of liberty from three to five years or
deprivation of liberty from three to five years, as well
as those actions in the third part of this article: a) in
order to commit a crime on the territory of another
state; b) suggests that if it is committed using a
position of service, it should be punished with
imprisonment from five to ten years. In addition, it is
proposed that in the fourth part of the proposed rule,
the following incentive rule of this crime, that is:
“Citizens and stateless persons who came to the
Republic of Uzbekistan without proper formalization
of the entry documents of persons affected by human
trafficking in order to use the right of political asylum
provided for in the Constitution of the Republic of
Uzbekistan are exempted from responsibility”. In turn,
we fully support the author’s opinion that it is
necessary to combat illegal migration through criminal
legal means and establish a special rule in the law in this
regard, but, in our opinion, in the context of this rule
put forward by the scientist, it is necessary to further
clarify the objective and subjective features of the
crime structure and the aggravating elements and we
do not believe that the structure of the crime in this
content alone will not be enough to carry out a
comprehensive combat the socially dangerous
consequences of illegal migration through criminal-
legal means.
In addition, according to the results of research
conducted in foreign countries where criminal
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responsibility for illegal migration is established, the
social necessity of criminal responsibility is based on
the effective combat illegal migration [6; 12; 13; 20] we
consider it appropriate to note separately and we can
note that a number of proposals have been developed
for the further improvement of the current rule. For
instance, D.D. Fomenko studied the criminal-legal
problems of illegal migration who proposes to state
Article 3221 of the current Criminal Code of the Russian
Federation in the following version regarding the
improvement of measures of responsibility for illegal
migration: “Organization of illegal entry of foreign
citizens or stateless persons into the Russian
Federation, their illegal stay in the Russian Federation
or illegal transit through the territory of the Russian
Federation, if committed for malicious or other
personal interests,
–
shall be punished by restriction of
liberty for up to two years or deprivation of liberty for
up to five years [21].
In turn, we believe that the motive of the crime
(mercenary or other personal interests), which
represents the subjective side of the crime of
organizing illegal migration as stated by the author, is
included as a necessary feature in the content of the
rule, and that a group of people colluded in advance,
by an organized group; participation of individuals in
international terrorist activities, for the purpose of
creating
international
criminal
organizations,
participating in banned terrorist organizations or
recruiting for committing other crimes on the territory
of the country; endangering the life or health of
migrants or treating them inhumanely or degradingly;
supporting the inclusion of such characteristics as
aggravating circumstances. Because these cases
increase the social risk of illegal migration and
considering the motive of the crime as a necessary sign
of the criminal structure allows to distinguish this crime
from similar crimes and clarify its essence.
In addition, D.A. Sokolov regarding the improvement
of responsibility for illegal migration, “in order to
distinguish between administrative and criminal
responsibility, it is necessary to take into account the
number of foreign citizens or stateless persons whose
illegal entry, stay or il
legal transit is arranged”, puts
forward the opinion and the disposition of the rule that
is responsible for the organization of illegal migration
“organizing of illegal entry of two or more foreign
citizens or stateless persons into the Russian
Federation, their illegal stay in the Russian Federation,
or illegal transit through the territory of the Russian
Federation”[14] offers to explain in the content. But
we do not agree with these opinions of the researcher,
because the number of foreign citizens or stateless
persons can increase its social danger when
determining criminal liabily for organizing illegal
migration, but this criterion does not distinguish the
crime from an administrative offense.
A.M. Ishakov proposes that to supplement the Criminal
Code with the penalty of forced expulsion of foreign
citizens and stateless persons from the territory of the
country in order to effectively combat illegal migration.
Coercive expulsion shall be used as the main or
additional type of punishment. If a person has been
convicted of the serious crime, coercive deportation
should be combined with a 10-year or indefinite entry
restriction [4]. In turn, this view is supported by T.N.
Utorova. But we do not support these views either,
because in our view there is no sufficient need to
include the penalty of forced expulsion from the
territory of the country as a criminal penalty. Currently,
in our country, this punishment is considered a type of
administrative punishment and in accordance with
Article 291 of the current Code of Administrative
Responsibility, administrative expulsion of foreign
citizens and stateless persons from the territory of the
Republic of Uzbekistan, with their right to enter the
Republic of Uzbekistan subsequently limited for a
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period of one to three years, it is determined to be
applied by the district (city) court in criminal cases in
the form of forced or independent departure under
supervision. If foreign citizens and stateless persons do
not comply with the court resolution on administrative
expulsion from the territory of the Republic of
Uzbekistan issued against them, in accordance with
Article 2251 of the Criminal Code, they shall be fined
from seventy-five times to one hundred times the base
calculation amount or be subject to administrative
detention for a period of up to fifteen days.
Meantime, R.K. Kecherukov studied this problem that
in addition to the responsibility established for
organizing illegal migration, the Criminal Code is
proposed to be supplemented with an independent
crime
called “Illegal Migration” and to state it in the
following version, such as: illegal stay or transit of a
foreign citizen or stateless person in the territory of the
country, committed by a person subject to
administrative punishment in accordance with Articles
18.8, 18.10-18.11 of the Code of Administrative Offenses
of the Russian Federation for such acts, ..... shall be
punished”[5]. In our opinion, foreign citizens and
stateless persons living in the country without
documents giving the right to live or with invalid
documents and not complying with the established
procedure for registration, moving or choosing a place
of residence, refusing to leave after the end of their
stay, as well as transiting through the territory of the
country. It is not appropriate to establish criminal
responsibility for non-compliance. Because, firstly, the
structure of the crime, which provides for criminal
responsibility for these acts,it was decriminalized in
our country by the Law of the Republic of Uzbekistan
on November 5, 2019, No. LRU
–
579 [8], secondly, it
may have a negative impact on the state policy of
developing tourism in our country and attracting
foreign citizens to our country, thirdly, the
responsibility for these acts is established within the
framework of the legislation on administrative
responsibility, and therefore it is considered sufficient.
In short, in order to prevent the socially dangerous
consequences of illegal migration and to create the
criminal-legal
basis
for
achieving
the
full
implementation of the tasks defined in the
international migration acts of our country, it is
proposed to improve it by establishing criminal
responsibility for the following criminal elements
related to illegal migration:
firstly, many cases of violations of the law are
committed by sending organizations in attracting
citizens who want to perform temporary labor
activities outside the Republic of Uzbekistan to
organized labor migration. In accordance with the
legislation, the Foreign Labor Migration Agency under
the Ministry of Poverty Reduction and Employment, as
well as private employment agencies licensed to carry
out activities on employment of persons seeking work
outside the Republic of Uzbekistan, are sending
organizations.
Usually, such violations occur in cases of violation of
the Law by sending organizations in the process of
organizing the selection of citizens who wish to
perform temporary work outside the Republic of
Uzbekistan, vacancies offered by foreign employers,
conditions for concluding employment contracts with
them, requiring type of profession or specialty, living
and working conditions, amount and conditions of
payment for labor, duration of working hours, social,
housing and household support in not ensuring
openness regarding the timely provision of
information, in the fact that cases of corruption are
allowed in these areas, as well as the inaction of the
state bodies responsible for ensuring the protection of
their rights and legal interests during the period of
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temporary labor activities of citizens outside the
Republic of Uzbekistan.
As a result, the sense of confidence of citizens in the
state bodies is decreasing, the rights, liberty or
interests of individuals protected by the Law are being
seriously harmed, as well as, citizens who have
suffered from violence, forced labor and discrimination
during the period of working abroad who have had
their labor and other rights violated, who have fallen
into a difficult financial situation and who have been
left without identity documents and without means for
living, are not provided with legal, social protection
and material support, the life and health of citizens is in
danger. In order to prevent these situations, it is
appropriate to establish criminal responsibility to the
Criminal Code “violation of migration legislation”.
secondly, the high social risk of organizing illegal
migration and immigration in a number of foreign
countries (Italy, Spain, France, Latvia, Lithuania,
Estonia, Bulgaria, USA, Turkey, RF, Belarus, Azerbaijan,
Tajikistan, Kazakhstan, Kyrgyzstan, Poland, China, etc.)
taking into account the positive experience of
establishing criminal responsibility for migration, it is
appropriate to establish criminal responsibility for
organizing illegal migration in the Criminal Code. In
particular, the direct object of the proposed crime is
the activity of state bodies in the sphere of regulation
and management of migration processes and social
relations that ensure the regulation of migration
processes based on state and international
documents. Social relations that ensure the life, health,
public health, economic and national security of
individuals can be an additional direct object of the
crime. Therefore, it is reasonable to place this crime in
the chapter of crimes against administrative order of
the Criminal Code.
The objective side of the crime is to organize foreign
citizens or stateless persons to enter, leave, stay, and
transit the territory of the Republic of Uzbekistan in
violation of the established order; sending citizens of
the Republic of Uzbekistan to illegally enter the
territory of a foreign country; consisting of directing or
assisting in any form in the execution of these actions.
The mens rea of this crime is expressed in the form of
intent. The perpetrators of this crime know that their
actions are illegal and intend or knowingly allow them
to be committed. Committing a crime based on
mercenary and other personal interests is a necessary
feature of this crime. The subjects of the crime shall be
any sane individuals over the age of 16.
The aggravating circumstances of the crime, these
actions are occured by a group of individuals, an
organized group, with the purpose of recruiting
individuals to participate in international terrorist
activities, to form international criminal groups, to
participate in prohibited terrorist organizations, to
commit other crimes on the territory of the country,
against an elderly person or an infirm person, a minor
or a woman who is known to be pregnant, using
violence or threatening to use violence or inhumane or
degrading treatment of a person, endangering the life
or safety of a person, should be considered as if they
were committed using their official position.
Therefore, the Criminal Code of the Republic of
Uzbekistan should establish criminal responsibility for
“organizing illegal migration”.
thirdly, in order to ensure the economic stability of our
country and to provide employment to the population,
it is very important to create vacancies and provide
employment to the population. In this regard, a foreign
citizen entering the Republic of Uzbekistan to perform
labor activities can only work for hire in the territory of
the Republic of Uzbekistan in our legislation, if the
employer has a certificate of the right to work in the
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territory of the Republic of Uzbekistan obtained in the
prescribed manner and the attracting and using
foreign labor force to the Republic of Uzbekistan is
stipulated by the employer when it is not possible to fill
the available vacancies with local labor force or when
there is a need for highly skilled and qualified
specialists.
If these procedures and conditions are violated by the
employer or illegal resolution are made by the persons
entrusted with providing documents of this category
or if the permit issued by the employer and foreign
citizens is caused by a violation of the conditions, or if
other violations of the law are detected, if its term of
validity ends before its term or if the document’s
validity period expires without its extension, it leads to
a violation of the management procedure of the state
authorities in the sphere of providing employment to
the population.
At this point, it should be said that in the legislation of
our country, neither administrative nor criminal
responsibility is established for the official of the
competent div, the employer and foreign citizens for
violating the legislation on the procedure for attracting
and using foreign labor in the Republic of Uzbekistan.
This has a negative impact on the mechanism of
effective implementation of the state manager in this
area. For this reason, the Criminal Code of the Republic
of Uzbekistan (the offense of the same content must
in addition be included in the Code of Administrative
Responsibility) criminal responsibility for “violation of
the procedure for attracting and using foreign labor in
the Republic of Uzbekistan”.
fourthly, it is known that illegal act circulation primarily
contributes to uncontrolled migration which is a
problem for the entire international community. In
particular, knowingly entering false information into
acts that lead to the illegal issuance or illegal receipt of
an identity act enables illegal migration. For this
reason, it is appropriate to establish criminal
responsibility for “illegally giving citizenship of t
he
Republic of Uzbekistan” in the Criminal Code of the
Republic of Uzbekistan.
We believe that the implementation of these measures
will increase the effectiveness of combat illegal
migration.
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Мазкур Конвенция Ўзбекистон Республикаси
Олий Мажлисининг 2003 йил 30 августдаги 536–
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Трансмиллий уюшган жиноятчиликка
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Мазкур
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Президентининг
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14
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П
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«Но
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амкорлик
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(2022
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Тошкент
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Республикаси Президентининг 2023 йил 27
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Битим
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Битим
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Республикаси
Президентининг
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П
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Республикасида
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Уторова Т.Н. Компаративный анализ уголовной
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Volume 04 Issue 02-2024
87
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
04
ISSUE
02
P
AGES
:
78-87
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
(2023:
6.
584
)
OCLC
–
1121105677
Publisher:
Oscar Publishing Services
Servi
миграции. Автореф. ... дис. ... канд. юрид. наук. –
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-12
