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GINO YAT REGULATION OF THE SCOPE OF APPLICATION OF LAWS
IN THE SPACE WITH INTERNATIONAL LAW NORMS .
Otaev O'tkirbek Matyokubovich
Senior teacher of the cycle of special subjects, Faculty of Professional
Training, Institute of Advanced Training of the Ministry of Internal Affairs of the
Republic of Uzbekistan, Lieutenant Colonel
Abstract: This article provides scientifically based proposals and
recommendations on the theoretical and practical aspects of regulating the scope of
criminal laws in the territory by international law.
Keywords: Uzbekistan, Criminal law, Territory, Process, Foreign, Crime,
Assassination, Punishment.
One of the important issues regulated by international law is the application
of international law in space. The scope of the international legal order is the influence
of the international legal order. When an international instrument establishes criminal
liability for certain criminal acts, the question arises as to which state criminal law
may be applied to each such crime in a particular case. In addition, the question of
bringing a person to criminal liability by an international court may arise, and then it
is necessary to distinguish between international jurisdiction and the jurisdiction of
national states. Currently, in international law, the territorial application of criminal
law norms scope territorial, civil (active personal), immunities from criminal
jurisdiction, Real ( protection ), universality, and extradition.
The oldest principle of the scope of application of criminal law is the territorial
principle. Previously, it was known as the “territorial principle”. The effect of
criminal law norms is, as a rule, limited to the territory of the state. States establish
borders in accordance with international law. National criminal laws apply to civil
aircraft and ships flying the state flag, regardless of their location, as well as to
warships, regardless of their location . The territorial effect of criminal law is provided
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for in many international instruments. In particular: Article 6 of the 1948 Convention
on the Prevention and Punishment of the Crime of Genocide states that “Persons
accused of genocide shall be tried by the competent court of the State in whose
territory the act was committed or by such an international tribunal.” The 1979
Convention Against Surrender also provides that each party provides that a State shall
take such measures as may be necessary to establish its jurisdiction over any offence
covered by this Convention committed in its territory or on board a ship or aircraft.
i
of the territorial scope of criminal law rules, the sovereignty and independence
of the state authorities of the participating states in international treaties are always
emphasized. In particular, as stated in the above-mentioned convention, any other
criminal jurisdiction exercised in accordance with domestic law in connection with
hostage-taking is not excluded.
Under international law, criminal liability may arise for particularly serious
crimes against the peace and security of mankind (international crimes) in accordance
with international standards. In such cases, the criminal law provisions of
international instruments, rather than the norms of national legislation, are applied,
and jurisdiction is exercised by an international court, and in some cases by a national
court. According to the 1998 Rome Statute, the International Criminal Court may
exercise jurisdiction over an international crime committed within the territory of a
State. (Article 12)
ii
.
Also, in international law, the effect of norms in space is implemented in
accordance with the international principle . According to this principle , the state
exercises its jurisdiction over its citizen who has committed a crime on the territory
of a foreign country.
The civil principle of the legal norm is enshrined in many international
conventions. For example, according to the 1979 " Convention against Hostages ", a
state has the right to prosecute its own nationals, as well as stateless persons normally
residing on its territory, for committing any of the crimes provided for in the
Convention under its own criminal law.
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In 2000 Article 15 of the Convention " Against Transnational Organized
Crime " states: "If the crime is committed by this participant committed by a national
of a State or a stateless person permanently residing in its territory, each party "The
state exercises its jurisdiction
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. "
A stateless person permanently residing in the territory of a state also
establishes a strong connection with this state. Therefore, international law stipulates
that a state may extend criminal jurisdiction over this category of persons when they
commit a crime outside the territory of the state. In international law , a national state
usually applies to the exercise of the right under consideration if a citizen or stateless
person permanently residing in its territory is not subject to criminal liability and
returns to his homeland or is extradited . Currently, this principle is implemented
mainly in two ways. Some states establish dual criminal liability for socially
dangerous acts (including Uzbekistan) in order to bring them to criminal liability in
accordance with national legislation. Other states provide for the possibility of
implementing the principle of citizenship for acts committed in a foreign state ,
regardless of whether they are recognized as criminal under local law or not . In
general, the countries of Germany, Korea, and Japan .
The rule of double jeopardy is a principle of international law , and states
decide whether or not to implement it in their national legislation. According to
Article 2 of the 1957 European Convention on Extradition, extradition shall be
granted for crimes punishable by deprivation of liberty or a maximum term of
imprisonment of at least one year or a more serious penalty, under the laws of the
requesting and requested Parties. The Model Convention on Extradition, approved by
the United Nations General Assembly in 1990, states that extraditable offences are
those which, under the laws of both Parties, are punishable by deprivation of liberty
for a term of not less than one year or by a more severe penalty, or by another type of
deprivation of liberty. In international law, the institution of immunities from criminal
jurisdiction plays an important role in resolving issues of the territorial scope of
criminal law. The term "immunity" comes from Latin and means " freedom from
something. " That is, in its most general form, immunity means not being subject to
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the jurisdiction of a local court for a crime committed. The scope of immunities varies
depending on its type. International law distinguishes the following immunities from
criminal jurisdiction:
diplomatic;
consulate;
international organizations;
official government del e gations;
special missions.
The immunities under consideration are provided for by international
instruments (the 1961 Vienna Convention on Diplomatic Relations, etc.) .
Immunities are necessary to create conditions for the normal performance of
the functions assigned to representatives of foreign missions, official delegations of
foreign states and international organizations. At the same time, they determine that
persons of this category are not subject to the criminal jurisdiction of the state in which
they are located for crimes committed within its borders. According to international
practice, such persons are declared "persona non grata" and are obliged to leave the
state within a certain period of time.
Immunity of a person is terminated in the following cases:
recall of a person by the accrediting state;
declaring a person persona non grata by the state of residence;
severance of diplomatic relations;
wars between the sending country and the receiving country;
termination of the existence of one of the states as a subject of
international law .
The general rule in international law is that immunity is complete or limited,
depending on the type of immunity, not only for officials, but also for the buildings,
transport, correspondence, archives of state offices, as well as for international
organizations. According to international legal instruments, immunity in the United
Nations is granted to the UN Secretary-General, his deputies, judges of the
International Court of Justice, and others.
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real and universal principles from the important principles of the scope of
international legal norms in space . Article 7 of the 1999 UN Convention on the
Suppression of the Financing of Terrorism states the Real principle as follows. Each
State may establish its jurisdiction over the financing of any crime of a terrorist nature
specified in the Convention and committed in the following cases :
1)
against one of the citizens of this state;
2)
if such a crime was committed against a government facility, diplomatic
or consular mission of the said state abroad;
3)
an attempt to compel that State to do or refrain from doing any act , which
resulted in the commission of such a crime .
15 of the 2000 UN Convention against Transnational Organized Crime also
states that "a State shall exercise its jurisdiction over a crime committed against a
national of that State. " Article 42 of the 2003 UN Convention against Corruption also
states that “ a State may establish its jurisdiction over any offence under this
Convention if the offence is committed against that State or against a national of that
State . ” The above provisions reinforce the Real principle of protection. According
to this principle , the criminal law of a national state applies to crimes committed
abroad against the interests of that state as well as against its citizens , regardless of
the territory where they were committed and the nationality of the offender . The
scope of this principle includes the protection not only of the interests of the state, but
also of the interests of citizens. A state has the right to exercise criminal jurisdiction
to protect its citizens if they suffer harm abroad as a result of a crime. This Real
principle is also called the passive citizenship principle and stems from the state's duty
to protect its citizens abroad. The operation of the Real principle under analysis is
usually applied to foreign citizens and stateless persons who are not permanent
residents of a given state and who have committed a crime outside the borders of that
state. Therefore, the principle of the territorial effect of criminal law is mainly applied
to foreigners and stateless persons who do not permanently reside in a given state.
The principle of real protection is also called the security principle, which extends its
effect to political crimes affecting state security. However, it can be noted that there
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are significant differences in the understanding of the principle of real protection in
the international practice of states . Along with crimes that encroach on state security,
economic, currency and migration -related crimes can also be punished
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in
accordance with this principle . In international criminal law, the Real principle
(protection or security) is that the criminal jurisdiction of a state applies to all persons
for certain acts committed outside that state, regardless of the nationality of the
perpetrators. We consider it appropriate to introduce this Real principle (protection or
security) into the criminal legislation of Uzbekistan.
Universal application of international law The principle is actually a principle
of international criminal law, which arose precisely in connection with the
development of international criminal law. The universal principle is aimed at
achieving the goal of ensuring criminal liability and punishment and preventing
crimes, regardless of the nationality of the perpetrators of the crime, as well as the
place where the crime was committed. The distinctive feature of the universal
principle is that, according to it, the criminality and punishment of the most dangerous
international crimes and crimes of an international nature are determined in
accordance with the national legislation of the place where the person is held liable,
regardless of his citizenship and the territory where the crime was committed, unless
otherwise provided for in international legal instruments. There are different opinions
on the definition of international crimes and crimes of an international nature.
According to L.V. Inogamova- Khegai , “ international crimes or crimes
against peace and security of humanity are understood as crimes that encroach on the
foundations of peace between peoples and states and the security of all humanity. In
his opinion, the concept of crimes of an international nature is used in relation to
socially dangerous acts that encroach on the fundamental rights and freedoms of the
individual, international cooperation relations between states in matters of ensuring
the normal functioning of organizations and institutions, coordination of joint
activities
and
actions
in
the
socio-cultural,
economic,
environmental,
entrepreneurship, and combating crime . ”
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According to A.I.Boyko, "international crimes (war crimes that attack the
peace and security of humanity) accept the highest values and interests of humanity
as their object, and therefore international law and global jurisdiction bodies prevail
here. Crimes of an international nature undermine the interests of individual states
and, through them, harm the international legal order. "
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.
According to A.G. Knyazov , “ crimes against international peace and security
of humanity should be understood as actions that violate the foundations of
international peace and the existence of humanity , and crimes of an international
(traditional) nature should be understood as actions that threaten the universally
recognized rights and freedoms
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of man in various spheres of the socio-economic
life of states .”
Many international conventions to which the Republic of Uzbekistan is a party
also provide for the fight against crime, including: the 2000 Convention against
Transnational Organized Crime ; the 2003 UN Convention against Corruption , and
others.
2000 UN Convention against Transnational Organized Crime reinforces the
universal principle as follows. With respect to the crimes provided for in this
Convention, each Party the state exercises its jurisdiction:
was committed outside its territory with the intention of committing a serious
crime in its territory ;
if the person suspected of having committed a crime is in its territory and it
does not extradite such person solely because he is one of its nationals;
if the person suspected of having committed a crime is in its territory and it
does not extradite him (Article 15).
territorial applicability of a legal norm is the extension of the criminal
jurisdiction of a state for acts recognized as criminal by international criminal law to
any persons, regardless of the place where they were committed. If in the competition
between the universal principle of territorial applicability of a criminal norm and other
principles of territorial applicability, the former is given priority, then in the
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competition between the institution of extradition of a criminal and the universal
principle, the latter is of primary importance.
Currently, in international practice, there are mainly two systems of criminal
extradition:
1. Europe continental system i - operates in continental Europe, Latin America
and other countries;
2. Anglo-American system of common law countries - In common law
countries (Great Britain, USA, Canada, Australia, India, New Zealand, etc.),
extradition of a criminal is based on an international treaty.
The US Supreme Court has ruled on several occasions that extradition of a
criminal can be carried out on the basis of a treaty between states. A characteristic
feature of common law countries is that, in addition to extradition of a criminal, they
do not recognize the customary rule of international law, which, as a rule, has an
international treaty, not to extradite their own citizens.
The 1957 European Convention on Extradition forms the basis of the
European-continental extradition system. The Convention
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establishes the procedure
and conditions for the extradition of persons who are being prosecuted for a crime or
are wanted by the competent authorities of the requested Party for the purpose of
executing a sentence or arrest warrant .
Extradition of a criminal is carried out on the basis of the following principles:
- if the committed socially dangerous act is among the crimes for which
extradition may be requested , the perpetrators must be extradited. If, in connection
with the receipt of the request, the law of the requesting and requested parties provides
for a penalty of imprisonment for a term of at least one year for this crime , extradition
shall be carried out (Article 2);
- the committed socially harmful act must be a "double crime", that is, the
offense must be considered a crime under the laws of both parties. The principle of
double criminality is an international legal norm;
- Criminal prosecution of an extradited person shall be carried out only for a
crime committed by the extradited person (Article 14).
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In addition to the established principles of extradition, the Convention
provides for other restrictions on extradition on the following grounds:
persecution is based on discrimination (racial, religious, national, civil);
the political nature of the crime;
related to customs payments and fees;
the passage of time;
In compliance with the principle of “
idem bis ” ;
the possibility of applying the death penalty to the extradited person;
crime scene, etc.
Extradition shall not be granted if the person sought is accused of a political
crime (Article 3). At the same time, the Convention states that an assassination
attempt on a head of state or a member of his family is not a political crime , and the
"bis" principle applies not only to previous convictions but also to acquittals and
acquittals . For example: pardon or amnesty (Article 9). The Convention does not
contain an absolute prohibition on extradition for a crime punishable by death.
Extradition may be refused if the requested State provides for the death penalty for
the criminal whose extradition is sought , but this penalty has not been provided for
or has not been carried out in the requested State . If the person is surrendered to the
requesting State and the death penalty can be applied to him, the latter shall ensure
that this type of punishment will not be applied in this case. A State may refuse to
extradite its own nationals (Article 6). However, if the requested Party refuses to
extradite its national , criminal proceedings must be initiated against that national at
the request of the requested Party. Extradition may be refused if the crime for which
extradition is requested was committed in whole or in part in the territory of the
requested Party, and if judicial proceedings are being conducted by the competent
authorities of the requested Party in connection with the crime for which extradition
is requested. Extradition shall not be granted if there is insufficient or unreliable
evidence that the person sought is involved in the commission of the crime for which
extradition is requested.
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Model Treaty
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on Extradition , adopted by the United Nations General
Assembly resolution of 1990 It contains the same principles as the 1957 European
Convention on Extradition . However, there are differences. According to the Model
Treaty, an extraditable crime must meet more stringent requirements . He must be
punished by deprivation of liberty for a term of at least one (two) years or a more
severe penalty, in accordance with the laws of both Parties. If the request for
extradition concerns a person who is wanted for the purpose of executing a
deprivation of liberty or another measure imposed for the same offence, extradition
shall be effected only at least four (four) to six months before the expiry of that term.
Including (Article 2 of the model contract) .
The model treaty provides for flexible
rules for determining whether an act is criminal under the laws of the requested and
requesting parties . The following are not relevant in determining whether an act is
criminal under the laws of either party:
Crimes , whether they fall under the same category under trademark law and
have the same symbol;
In accordance with the legislation of the Parties, whether the constituent
elements of this crime are distinguished when taking into account the entire set of acts
or omissions indicated by the requested State (Article 2).
If the extradition of a person is requested for an offence relating to taxes,
customs duties, exchange controls or other revenue matters , extradition shall not be
refused on the ground that the law of the requested State does not provide for such an
offence . There shall be no requirement for the payment of taxes , customs duties or
exchange controls similar to those provided for in the law of the requesting State
(Article 2). This provision of the Model Treaty on Extradition differs from the
European Convention, which provides that a person shall not be extradited for
financial offences.
Currently, the institution of extradition continues to develop. A person can be
considered extradited if the extradited person is guaranteed the right to a fair trial with
respect for his rights and freedoms. There are changes in the concept of non-
extradition for "political crimes". Recently, terrorist acts have become widespread
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and crimes are being committed in various parts of the world during non-international
armed conflicts. To leave such acts outside criminal liability, based on the political
nature of the acts committed, is to do evil by leaving the perpetrators of the most
dangerous crimes unpunished. Many international conventions specifically stipulate
that even crimes of a political nature can be extradited. Persons who have committed
crimes against the peace and security of mankind must be extradited. Thus, the
jurisdiction of the International Criminal Court includes: genocide, crimes against
humanity, war crimes and crimes of aggression. All of them are included in the list of
extraditable crimes .
In conclusion, the scope of application of the criminal law of the Republic of
Uzbekistan in the territory The legislative regulation and application of the principles
of international law must comply with the generally recognized principles and norms
of international law, international treaties of Uzbekistan, and in the event of
inconsistency with such norms, the norms of international law must be applied .
Used literature
i
See: Current international law. M., 1999. T. 3.23 pp.
ii
See: International Criminal Court. Glasnost Foundation. M., 2000. 51 pp.
iii
See: International Law. Legal Framework of the Inform Consultant Plus System
iv
See: Brownlee.Ya. International Law: In 2 volumes. pp. 433-434.
v
See: Inogamova-Khegai LV International Criminal Law. M., 2003. pp. 132,143-
144.
vi
See: Boyko AI International and Russian Criminal Law. Rostov, 2004. 51- p.
vii
See: Knyazov AG J. The action of the law of grace in space. Ulyanovsk 2006. p.
39.
viii
http://www.rambler.ru/db/news/msg.html?ph=l&mid=7438950
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See: International Law. Information and Legal Base of the ConsultantPlus System.
