Volume 02 Issue 10-2022
1
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
10
Pages:
01-07
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
ABSTRACT
In the article, the content and essence of the concepts of "minors" and "children", the importance of the mental,
spiritual and volitional development of a person in determining adulthood and the procedure for determining the age
of a minor, international declarations and conventions, current normative legal documents in the republic, and the
opinions of scientists opinions, the legislation of developed foreign countries were analyzed, and proposals were
developed on the definition of the concept of "minors" and the procedure for determining the age of a minor.
KEYWORDS
Crime, juvenile, children, mental, mental, voluntary, investigation, suspect, examination, Uzbekistan.
INTRODUCTION
In recent years, the law "On the prevention of
delinquency and delinquency among minors" (2010),
the President of the Republic of Uzbekistan "On
additional measures to further strengthen the
guarantees
of
children's
rights"
No.PQ-4296,
"Protection of children's rights" Adoption of decisions
PQ-4736 "On additional measures to improve the
system" as well as by the decision of the President of
the Republic of Uzbekistan dated March 14, 2017 "On
measures to further improve the system of crime
prevention and combating crime" PQ-2833 " The
approval of the "Regulation on Interdepartmental
Commissions on Juvenile Affairs" shows that efforts to
strengthen the rights of minors are being
systematically implemented.
Research Article
THE CONCEPT OF "MINORITY" AND ITS CRIMINOLOGICAL SIGNIFICANCE
Submission Date:
October 01, 2022,
Accepted Date:
October 05, 2022,
Published Date:
October 11, 2022
Crossref doi:
https://doi.org/10.37547/ijlc/Volume02Issue10-01
Allanazarov Oybek Davronovich
Associate Professor, Academy Of The Ministry Of Internal Affairs Of The Republic Of Uzbekistan Deputy Head
Of Magistracy, Legal Philosophy In Sciences Doctor, Uzbekistan
Rashidov Iskandarbek Rashidovich
Master Of The Academy Of The Ministry Of Internal Affairs, 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.
Volume 02 Issue 10-2022
2
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
10
Pages:
01-07
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
The concepts of "minors" or "children" are used in the
same sense in relation to persons under 18 years of age
in the above-mentioned normative documents. This
creates the need to first clarify the concepts of "minor"
and "child" from the point of view of special protection
of the rights and interests of minors.
By the Uzbek people, the concept of "child" serves to
express the concepts of newborn baby, child, son and
daughter, offspring. Also, the concept of "child" is
used in a figurative sense for a person who is older, but
behaves like a child, thinks like a child. In addition, the
concept of "child" is also used as a form of address by
adults to young people .
The concept of "coming of age" is used in the following
meanings:
- to grow up and reach adulthood;
- to reach a mature level in general, young and
otherwise;
- to reach maturity in a certain work, activity .
It can be seen that the concept of "growing up" is a
concept with a wider meaning than the concept of
"child" and is used not only for people, but also for
other objects. In our opinion, in the application of this
concept to a person, it is appropriate to evaluate the
fact that a person has reached a certain level of
maturity as the main criterion. In this place, it is
assumed that the level of maturity of a person includes
other aspects related to his maturity along with the age
criterion.
In this regard, the issue of whether or not to evaluate
the age criterion as the main characteristic defining
adulthood is a somewhat problematic issue. It should
be noted that although the general age of adulthood is
18 years according to the Law on the Rights of the
Child, each person's maturity period is different, and
the level of maturity is also individual.
In our opinion, it would be wrong to treat every person
who has reached the age of eighteen as an adult.
Because in order to consider a person as an adult, he
must reach a certain age, that is, he must be
biologically and physically developed at a certain level,
and he must also have certain mental, spiritual, and
volitional abilities. Only in this case it is appropriate to
consider him as an adult.
In this regard, sometimes problematic situations are
encountered in the practice of judicial investigation.
For example, although a person who has reached the
age of 18 can understand the legal consequences of his
actions, but does not have the intellectual, mental, and
voluntary abilities of adults, forensic psychology and
psychiatric
examinations
are
appointed.
The
commission
of experts conducts appropriate
investigation and concludes that the person has some
symptoms of mental disorder or is mildly mentally
retarded, and even in this case, he has or does not have
the ability to understand the nature of his actions and
consciously control them. This conclusion means that
this person may or may not be the subject of a crime,
and is the basis for bringing him to criminal
responsibility or applying coercive medical measures.
But it remains unclear at what age level this person is
according to his mental and spiritual development. His
age is determined through his identity documents, and
the real circumstances that have arisen are ignored.
However, in such cases, it is necessary to appoint a
comprehensive forensic psychological and psychiatric
examination to determine the age of the person based
on the level of development.
Volume 02 Issue 10-2022
3
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
10
Pages:
01-07
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
In the decision of the Plenum of the Supreme Court
"On Jurisprudence in Cases of Juvenile Crimes" it is
noted that in the event that there is information
indicating the mental deficiency of the minor
defendant, a comprehensive forensic psychiatric
examination should be appointed to clarify the issue of
whether or not the minor is lagging behind in mental
development. done However, this issue is required to
be resolved before the minor has the status of a
defendant, that is, at the stage of investigation of the
criminal case. Consequently, according to Article 361 of
the Criminal Code of the Republic of Uzbekistan, the
day, month and year of birth of the person being
brought as an accused must be determined and
indicated in the decision on involvement as an accused.
A.A.Bazarov paid serious attention to this issue in his
research work, and as a solution to the problem, the
issue of determining the physical and mental state of
the minor suspect, accused and defendant as a
separate item among the cases in which it is necessary
to appoint and conduct an expert examination
provided for in Article 173 of the Criminal Code of the
Republic of Uzbekistan proposed to enter .
N.A.Ramazonova recommended adding a new part to
Article 548 of the Criminal Code of the Republic of
Uzbekistan with the following content: it should be
additionally checked whether the minor fully
understood or was able to control the factual nature of
his actions (inaction) or the level of social danger .
These authors' points are valid, but need some
clarification. Also, there is a need to improve the legal
norms regarding the analyzed issue. In order to solve
this issue, a new norm on determining the age of a
minor has been introduced into Chapter 60 of the
Criminal Procedure Code it is desirable to regulate in
detail the procedure of identification, the issues of
appointing a complex expertise in cases of
psychological development lag.
When studying the legislation of foreign countries on
the issues analyzed above, the Criminal Procedure
Codes of the Republics of Russia , Ukraine , Belarus ,
Kazakhstan , Tajikistan , Turkmenistan , Kyrgyzstan ,
Moldavia , Azerbaijan , Armenia , as well as the People's
Republic of China and the Federal Republic of Germany
specify a certain age (18 years) of a person. reaching is
considered as the main criterion for defining minors.
Some of them also focus on determining the state of
mental and spiritual development of minors. For
example, in the JPK of the Republics of the Russian
Federation, Ukraine, Moldavia and Turkmenistan, if
there is information that a minor is lagging behind in
psychological development compared to his age, it is
stipulated that he can fully understand the level and
significance of social danger of his actions (inaction) or
be able to control them. In the JPK of the Republic of
Kazakhstan, a deeper approach to this issue is
established, and it is determined that a psychological
and psychiatric examination must be appointed in
order to determine whether the minor suspect and the
accused can understand and control the nature of their
actions, as well as their mental health.
In addition, the procedural actions carried out in order
to determine these cases in the JPKs of the Republics
of Moldavia and Turkmenistan have also been clarified.
In particular, for this purpose, it is necessary to
interrogate parents, teachers, tutors and other
persons with necessary information regarding this
situation, study documents and conduct other
investigative actions. In the Criminal Code of the
Republic of Kazakhstan, it is provided that a
psychological examination can be appointed in order
to determine the mental, willful, spiritual development
Volume 02 Issue 10-2022
4
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
10
Pages:
01-07
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
of a minor, as well as other features specific to his
psyche.
In our opinion, according to the results of the forensic
psychiatric examination conducted to determine the
age, it is appropriate to assess this category of persons
as minors from a legal point of view, although they
have reached the age of 18. Therefore, the issue of
applying the legal norms applicable to minors is an
urgent task.
Today, according to Article 547 of the Criminal Code, in
practice, the norms regarding minors are applied only
to those under the age of 18. According to him, the
provisions specified in Chapter 60 of the Criminal Code
are intended to be applied to the cases of crimes
committed by persons who have not reached the age
of eighteen before committing the crime. This norm in
the Code states that 18-year-olds are general for
minors, and when reaching this age, a person of normal
development should have reached maturity in all
respects. In our opinion, according to the general
content of the norms of JPK, the task of determining
the maturity level of older persons who are lagging
behind in terms of mental and mental development
and to what extent they are lagging behind their actual
age is assigned to the persons responsible for
conducting the case. However, there are no rules
about this in any regulation of the Civil Code.
It is stated in Article 548 of the Criminal Code that the
exact age (year, month, day of birth), personal
characteristics and health conditions of the minor
accused, as well as living and upbringing conditions,
must be studied and proven. But this norm cannot fully
cover the essence of the rule we are looking for.
Therefore, there is a need to clearly define the concept
of "minor" in the chapter of the Criminal Code of
Criminal Procedure of the Juveniles.
In addition, the decision of the Plenum of the Supreme
Court "On Jurisprudence in Cases of Juvenile Crimes"
stipulates that the age of a minor should be
determined through identity documents. Also, in this
decision, the issues of determining the age of a person
by the forensic examination were also touched upon.
In particular, when the age of the defendant is
determined by the forensic examination, the last day
of the year determined by the experts is considered as
his birthday, and when the age is determined by the
minimum and maximum number of years, the court
should start from the minimum age determined by the
experts . But this provision is relevant for cases where
the identity documents of the suspect are not available
and it is not possible to determine his age in other
ways. In addition, when determining the age of a
person, forensic examination focuses on the level of
biological and physical development. Studying the
level of development of a person's mental, spiritual
and volitional abilities does not fall within the scope of
issues to be resolved by this expertise.
Also, in this decision of the Plenum of the Supreme
Court, it was noted that in order to clarify the issue of
the minor's retardation in mental development, a
comprehensive forensic psychiatric examination
should be appointed, thereby obtaining answers to
questions about his mental development, to what
extent he is behind his age, and the level of mental
retardation provided . Unfortunately, due to the
existence of a number of problems related to the
appointment of this type of expertise and the
implementation of expert research, in most cases, the
implementation of this requirement is not ensured by
the officials responsible for conducting the case. This
situation is associated with the following main
problems:
Volume 02 Issue 10-2022
5
International Journal Of Law And Criminology
(ISSN
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2771-2214)
VOLUME
02
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SSUE
10
Pages:
01-07
SJIF
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FACTOR
(2021:
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705
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(2022:
5.
705
)
OCLC
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1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
First, as a result of the appointment of an inpatient
forensic psychiatric examination, the criminal case
remains at the disposal of experts for 1 month to study
and give a conclusion. During this time, problems arise
in the matter of conducting investigative actions.
Secondly, in most cases, it is necessary to carry out in-
patient examinations of this type in the Republican
psychiatric hospital. Coming to this center from remote
regions of the republic creates some difficulties.
Thirdly, there is a high probability that other
participants in the criminal case (victims, witnesses)
will go on a long-term trip outside the territory of the
republic during the examination period.
The criminological importance of determining their
age, level of mental and spiritual development in the
investigation of juvenile crimes is as follows:
- on the basis of these features, a description of the
mechanism of the crime is made, the investigation
situation is assessed and procedural actions are
planned;
- selection of the place, time and tactical methods used
for direct communication with a minor, such as
interrogation, face-to-face and identification, affects
the processes of determining the scope of the
participants involved in them;
- the correct assessment of the causes of the
committed crimes and the enabling conditions, taken
into account when determining the appropriate tasks
for their elimination;
- attention is paid to the application of procedural
coercive measures, including the selection of a
precautionary measure.
Also, since the system of actions to determine a
person's age, level of mental and spiritual
development is not directly defined by the law, the
tactical recommendations developed in the science of
criminalistics are important in this regard.
Based on the above, it is possible to propose directions
for improving the legal norms and investigative
practice related to the rights of minors in the following
areas:
First, it is necessary to define the concept of "minor" in
the JPK. This definition should be taken from Article
547 of the Criminal Code of Ukraine and this article
should be rewritten as follows: "Minors shall mean
persons under the age of 18, as well as persons under
the age of 18 who are lagging behind their age in terms
of mental, spiritual and voluntary development."
Secondly, it is appropriate to supplement the Criminal
Code with Article 5481 "Determining the age of a
minor" and include the following provisions in it:
The age of a minor is determined by means of
documents confirming his identity, or in the absence of
them, by the testimony of close relatives, reliable
documents or examination.
If there is a doubt that the psychological development
of a minor is behind in relation to his age, the level of
psychological
development
behind
by
the
appointment of a complex expertise, whether this
condition is related to his mental disorder or mental
illness, his appropriate age for mental development, as
well as the level of social danger of his actions
(inaction) and it must be determined that he can fully
understand the importance or manage them.
Volume 02 Issue 10-2022
6
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
10
Pages:
01-07
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
A person is considered to have reached the age of
criminal liability starting from the zero hour of the day
following the day of his birth.
When the age of a minor is determined by conducting
an expert examination, the last day of the year
determined by the experts is considered as his
birthday. When age is determined by the minimum and
maximum number of years, it is derived from the
minimum age.
In addition, it is necessary to establish a commission of
experts in each regional center that can conduct this
type of expertise and provide a clear conclusion, and
take measures to regularly improve their qualifications.
There is no doubt that the improvement of the
criminal-procedural legislation and investigative
practice in these directions will make a significant
contribution to the effectiveness of the work aimed at
protecting the rights and freedoms of minors and
ensuring their interests.
REFERENCES
1.
An explanatory dictionary of the Uzbek language.
Volume 1. T.: "National Encyclopedia of
Uzbekistan", 2006. - B. 305-306.
2.
That source is page 469.
3.
Bazarov
A.A.
Proscessualnye
garantii
obespecheniya prav i zakonnyx interesov
nesovershennoletnix na stadii predvaritelnogo
rassledovaniya: Avtoref. dis. ... candy. walk science
- T., 2012. - S. 17.
4.
Ramazonova N.A. "Methodology of investigation
of crimes committed by minors" Doctor of
Philosophy in Legal Sciences diss. abstract. - T.
2019.
–
B 19.
5.
Ugolovno-protsessualnyy
codex
RF
//
http://www.consultant.ru/document/cons_doc_L
AW_ 34481/ (time of access 25.03.2021).
6.
Ugolovnyy protsessualnyy kodeks Ukrainy //
http://continent-online.com/Document/?doc_
id=31197178 (accessed 03/25/2021).
7.
Ugolovno-procesualnyy
kodeks
Republic
of
Belarus
//
https://kodeksy.by/ugolovno-
processualnyy-kodeks. (access time 25.03.2021).
8.
Ugolovno-procsessualny codex of the Republic of
Kazakhstan
//
https://online.zakon.kz/
document/?doc_id=31575852#pos=6889;-60.
(access time 25.03.2021).
9.
Ugolovno-procesusualny codex Republic of
Tajikistan
//
http://continent-
online.com/Document/?doc_id=30594304#pos=12
6;-40. (access time 25.03.2021).
10.
Criminal
Code
of
Turkmenistan
//
https://online.zakon.kz/
document/?doc_id=31344376.
(access
time
25.03.2021).
1.
Ugolovno-procsessualny codex of the Kyrgyz
Republic
//
https://online.zakon.kz/
document/?doc_id=36313326.
(access
time
25.03.2021).
11.
Ugolovno-procsessualny codex of the Kyrgyz
Republic
//
https://online.zakon.kz/
document/?doc_id=36313326.
(access
time
25.03.2021).
12.
Legal Code of the Republic of Moldova //
http://continent-
online.com/Document/?doc_id=30397729. (access
time 25.03.2021).
13.
Ugolovno-procsessualny codex of Azerbaijan
Republic
//
https://online.zakon.kz/
document/?doc_id=30420280.
(access
time
25.03.2021).
14.
Criminal Code of the Republic of Armenia //
https://www.arlis.am/
Volume 02 Issue 10-2022
7
International Journal Of Law And Criminology
(ISSN
–
2771-2214)
VOLUME
02
I
SSUE
10
Pages:
01-07
SJIF
I
MPACT
FACTOR
(2021:
5.
705
)
(2022:
5.
705
)
OCLC
–
1121105677
METADATA
IF
–
5.489
Publisher:
Oscar Publishing Services
Servi
documentview.aspx?docid=82645. (access time
25.03.2021).
15.
Ugolovno-procesualnyy
kodex
KNR
//
http://ru.china-embassy.org/rus/zfhz/zgflyd/
t1330729.htm. (access time 25.03.2021).
16.
Legal-Procedural Code FRG // https://publishup.uni-
potsdam.de/opus4-
ubp/frontdoor/deliver/index/docId/6039/file/sdrs0
2.pdf. (access time 25.03.2021).
17.
See: Collection of decisions of the Plenum of the
Supreme Court of the Republic of Uzbekistan. 1991-
2006. Volume 2. /N.Z. Under the general editorship
of Tashmatov/ T.: "Teacher", - 2007. B. 25.
18.
See: Collection of decisions of the Plenum of the
Supreme Court of the Republic of Uzbekistan. 1991-
2006. Volume 2. /N.Z. Under the general editorship
of Tashmatov/ T.: "Teacher", - 2007. B. 25.
