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GENESIS OF THE STAGES OF COMMITMENT OF CRIMES IN THE
TERRITORY OF UZBEKISTAN (BASED ON THE ANALYSIS OF
ISLAMIC LAW RULES)
Kamalova Dildora Gayratovna
Dean of Faculty Criminal Justice
of Tashkent State University of Law,
Doctor of Philosophy in Law,
ORCID: 0000-0001-6747-8883
E-mail: d.kamalova@tsul.uz
https://doi.org/10.5281/zenodo.13612110
Annotation:
This article provides a retrospective analysis of the stages of
crime commission based on an examination of sources related to criminal norms
that were in effect in our country. The author has studied the historical aspects
of the stages of committing crimes and has categorized them as follows: 1) the
ancient period, from the emergence of early civilizations until the arrival of
Islam in the territory of Uzbekistan; 2) the period when Sharia norms were in
effect in our country, covering the time from the 8th century to the 1850s.; 3)
The era of Tsarist Russia, spanning from the 1850s to the 1920s.; 4) The period
of the former Soviet Union, which includes the years from 1922 to 1991.; 5) The
most recent historical period, including the early years of independence, starting
with the adoption of the Criminal Code of the Republic of Uzbekistan on
September 22, 1994, and continuing to the present day. The first source that
established liability for crimes in the territory of Uzbekistan was the Avesta. The
author has explored how this source addressed issues related to completed and
incomplete crimes, preparation for a crime, and the imposition of punishment
for attempted crimes. The author also explains that in Sharia norms, the unity of
action and intention is considered proportional, and the formation stage of
intent holds particular significance. Although issues related to preparation for a
crime and attempted crimes are not specifically regulated in Islamic law, certain
judgments do exist. The author substantiates that for attempted crimes,
punishments such as ta'zir and hadd were prescribed.
Keywords:
history, stages of committing a crime, incomplete crime,
preparation for a crime, attempted crime, formation of intent, intention, Islamic
law, Sharia, ta'zir punishment, hadd punishment.
History plays an important role in the revival of the moral values of the
nation, in the truthful and unbiased coverage of past and present historical
events. “History is the most valuable heritage of our nation. We should always
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appreciate, learn and pass our great history on future generations. A nation that
does not know its history cannot construct its future. Therefore, we need to
study all aspects of our history in depth and learn from it. “Retrospective
analysis and research of the rules of the Criminal law in determining the
criminality of the act are distinguished in many ways. The analysis of historical
documents, based on the study of its specific aspects, makes it possible to apply
some achievements to the legislation, and to completely abandon some of them.
The study of the history of the development of criminal law rules, which
determine criminal responsibility for the stages of committing a crime, is
important in determining their perspective.
Since the concept of the stages of crime, their types and the history of the
issue of punishment are poorly studied in the Republic of Uzbekistan, there are
almost no sources that reflect the information related to these relationships.
Only in some historical sources can you find some information about how these
crimes were punished.
Since the main concepts of our research are related to the stages of crime,
we considered it appropriate to analyze the sources of criminal rules in our
country and study them in four following groups. Including: 1) the ancient
period – the period when the first civilizations appeared and before the
introduction of Islam to the territory of Uzbekistan; 2) the period when sharia
norms were in force in our country. This period covers the period from the 8th
century to the 50s of the XIX century; 3) the period of Russian empire – the
period from the 1950s to the 20s of the XX century; 4) the period of the former
Soviet Union – this period includes the period from 1922 to 1991; 5) the most
recent historical period, which includes the first years of independence, the
adoption of the Criminal Code of the Republic of Uzbekistan on September 22,
1994, and the time up to the present day.
We think that the peculiarity of these periods refers that responsibility for
these crimes is determined in each of them, that the rules of the Criminal law
apply to that period and that it has its own characteristics.
Avesta is the first source of responsibility for crimes in our country. In the
Avesta, crimes are divided into complete and inchoate crimes according to the
composition of the committed act. According to Zoroastrian law, attempt to
commit a crime, and the commission of a crime are punishable. “Attempt to
crime is the search, making and adaptation of tools for the commitment of a
crime, or the creation of favorable conditions for the commitment of a crime,
provided that the crime was not completed due to circumstances beyond the
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control of the criminals”. Line 17 refers to attempt to crime by inflicting bodily
harm with a military weapon. “Whoever stands up with the intention of inflicting
physical injury on someone is considered a crime called – “
ogerepta
”. Ogerepta is
a criminal who took a military weapon, or an impenetrable object or a protective
device in his hands with the intention of harming someone, but due to unknown
reasons failed in commiting crime [1; 316 p.]. This means the inability to
continue criminal activity in a situation that does not depend on the will of the
criminal. Otherwise, if the criminal shows the intention of causing injury, and
then realizes his actions and stops, the possibility of preventing criminal actions
is excluded. The peculiarity of this type of attempt to crime is “standing up and
holding a military weapon in his hand with the aim of harming another person”,
but due to the intervention of others, he was unable to complete the crime. If, the
armed with a military weapon, approaches the object of the crime, i.e. another
person, for this purpose, the person is guilty of attempted murder. Since the risk
of harming human health as a result of such actions is real, it is appropriate to be
punished more severely. An act (inaction) of a person that is aimed directly at
committing a crime is considered an attempt to crime, if it is not completed
independently of his discretion. It is designated in Avesta: “Who stands up and
goes near someone with the intention of harming, his guilt is qualified as
avauirishta
”. Avauirishta is considered a crime, and it should be understood that
when a person intends to injure someone with a military weapon, due to the
intervention of other people, he cannot carry out his decision to the end [1; 316
p.]. Therefore, the Vendidad defines several types of criminal attempts and
assassination according to the reality of the risk of injury to others health. A
threat that is less dangerous according to the level of severity, accordingly,
deserves a lighter sentence. For instance, if a person stands up to attempt to
crime, they still become an ogerepta, even though they didn’t get anything in
their hands. If he is stopped at this stage, this is considered the first stage of
attempted murder, i.e. attempt, and is punishable by “five lashes with a horse
whip and five lashes with a cane”. If a person approaches an object for the
purpose of a crime or swings a weapon over his head in order to strike, if he is
stopped at this stage, the act that poses a greater threat to the person’s health
(avauirishta) is punished more severely: “ten lashes with a horse whip and ten
lashes with a cane” [1; 316 p.].
It is noteworthy that in the Avesta, preparation to a crime and attempt to
crime are more clearly classified according to specific types of crimes that
present a real danger to the criminal. For instance, when committing a
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premeditated crime, if a person stands up only for a criminal purpose or takes a
weapon, the risk is relatively less. It is possible that he will change his mind and
refrain from committing the act until he reaches the target or destination, so
there is enough time before committing the crime. On the other hand, if the
person comes close to the victim’s head and is ready to strike with a weapon, the
risk of injury to human health is much higher. The chances of preventing the
crime are greatly reduced. In this regard, in the classification of these acts in
Vendidad, the reality of the commitment of the crime was taken into account as a
necessary qualifying feature. Another feature of the Avesta is that when
determining whether to attempt or prepare for a crime, the repetition of these
acts is considered a very dangerous act. Repeated attempts to commit a crime
increase the guilt of the offender and, accordingly, causes tougher punishment.
The above indicates that the Avesta continuously aims to prevent crime and
delinquency. Therefore, attention is paid to the prevention of crime from the
stage of preparation and assassination. As can be seen, in the Avesta, a person’s
act is evaluated based on committed behavior. Preparation for a crime and
attempt to commit a crime are distinguished from the point of view of the
proximity of the act to the crime and the possibility of harm. It is noteworthy
that in the Avesta, criminal responsibility for criminal preparation and
attempted crime was differentiated and reflected in the punishment.
In addition, in the sources of “
Tuzuki Temuriy
” [2; 182 p.; 3; 64 p.]and
“
Yassa
” [4; 64 p.] studied in our research, we did not find rules regarding the
stages of crime and their types.
The next stage of development of social and legal relations in our country
included VIII-XIX centuries. Taking into account the fact that Sharia rules have
been followed in our country during this period, we believe that it is appropriate
to study the special features of Sharia Criminal law rules, including the
determination of responsibility for the stages of committing a crime. Since
criminal-legal relations in Sharia are not regulated by a specific legal acts, it can
be concluded that there is no specific rule that includes the concept of stages of
crime, types and their definitions. The stage of formation of intention is
described in a slightly different way in Islamic law. In other words, according to
the sources of Islamic law, intention is considered necessary as the proportional
unity of action and intention. Examples of this can be given from the following
hadiths.
Therefore, in Muslim law, not only the action, but also the intention itself is
equal to the action and even has a higher place than it. Even if the action is not
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performed, the action is considered to have been performed at the time of the
intention for this action. According to Islamic law, Allah motivates people first
because of his intention, and only after that is the person’s action taken into
account.. Therefore, according to Muslim law, unity of action and intention is
defined as a necessary condition. The intention of people acquired legal
significance and was even considered a sin.
Imam Bukhari says: Allah says in Quran: “Say (O Prophet), “Everyone acts
in their own way. But your Lord knows best whose way is rightly guided”.
(Surah Isra, verse 84). Another hadith has the following idea. Actions are
accepted according to intention, whoever intends, achieves what he intends.
Whoever emigrated for the sake of Allah and His Messenger will be rewarded for
migrating for the sake of Allah and His Messenger. Those who emigrated with
the intention of gaining wealth or getting a wife can only achieve that intention
(but will not receive reward) [5; 19 p.].
In Sharia rules, punishment is prescribed not only for the formation of the
intention, but also for the manifestation of the intention. The following source
can be cited as evidence. “For the public interest” punishment is applied to
persons who have not yet committed a crime, but who have sufficient grounds
for the possibility of committing a crime [6; 200 p.].
Thus, in the sources of Muslim law, we can find cases of punishment being
applied to persons suspected of committing a crime. In our opinion, the purpose
of the punishment applied to such persons was to prevent the commitment of
socially dangerous acts.
According to some sources, Islamic law provides for criminal
responsibility for crimes that have been committed. The concept of attempt was
not fully developed. However, in a number of crimes, the occurrence of a
criminal consequence was considered the basis of responsibility. For instance,
criminal consequences are provided for crimes such as theft and bodily harm [7;
169 p.]. In particular, if the criminal consequence of murder is the life of the
victim, the consequence of theft, invasion, robbery is property damage.
Failure to complete the crime by the criminal was the basis for imposing a
lesser punishment than the prescribed punishment. For instance, if the criminals
were caught blocking the road without taking the goods and killing anyone, they
were given prison sentences rather than death. Also, if a thief is caught before
taking something out of the house, his hand is not cut off [7; 169 p.].
“If a thief stole material wealth from the house and then was unable to
take it out of the yard, then the thief’s hand will not be cut off in this situation.
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Because the yard is under the rule of the owner, it is part of the territory that
protects the property of the person”. As long as the items are in the yard, it is not
a literal theft, but an attempted theft. In order for the hand to be cut, the items
should have been taken out of the yard. When things are in the yard, it is
considered that the property is in the hands of the owner of the property
because the yard is subordinate to the owner of the house. Thus, the theft is a
completed crime from the moment a person has the right to dispose of the
property in full. It should be taken into account that the person who committed
the crime acquired the property. Faqih Jalolitdin Khorezmi says: “If a thief did
not have time to take the stolen thing out of the house, and in the meantime the
thing in the hands of the thief perishes (that is, if it loses its previous quality, if it
leaves its previous state, if it loses its value), in this case, the value of this
property will be recovered from the caught thief” [8; 145 p.]. Thus in cases
where a person does not have the right to own property, it is enough to collect
the value of the property and no penalty is imposed.
In addition, according to Sharia, punishment is assigned to the guilty
persons in proportion to their actions. According to some sources, if robbers
took the property of a Muslim or
dhimmi (non-Muslims)
, their right hands and
left legs were cut off. If they killed them without taking their property, all the
guilty parties will be punished with death. In this case, even if the owners of the
goods forgive, the punishment will be enforced. If the culprits caused bodily
harm to a person without taking the goods, they were all retaliated to the extent
of the bodily harm inflicted. If warriors took property and then injured a person,
their hands and feet were cut off [9; 99 p.]. It can be seen that the issue of guilt of
individuals is determined based on the nature of the committed act.
It should be noted that although there is no special rule regulating the
preparation of a crime or an attempt to commit a crime in the Sharia, one can
see rulings aimed at regulating these issues in a number of sources of Islamic
law.
Punishment measures are classified in Islamic law based on the social
danger of the stages of crime. For instance, if a completed crime carries a fixed
penalty, attempted crime is punished more lightly. The following points can be
cited as an example.
“Trespassing by an organized group is punishable if property is taken and
bodily injury or death occurs as a result of the crime. If this group is caught
before the property is taken and the person is killed, even if there is a possibility
of causing bodily harm, the offender will be forced to take an oath without
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severe punishment” [10; 49 p.]. Therefore, it is envisaged that a lesser
punishment will be imposed for the crime of attempted murder.
According to Islamic law, offenses are divided into three categories based
on the punishment imposed: crimes punishable by
qisas
or
diya
, crimes
punishable by
hadd
, and minor offenses punishable by
tazir
(“corrective
punishment”) [11; 360 p.]. Of these punishments, the measure of
tazir
is
assigned to the persons who committed the crime. It includes from 3 to 39
lashes, imprisonment, warning, public reprimand, fine, deprivation of the right
to wear a
turban
[9; 87, 113 p.]. According to some sources, the punishment
measure
tazir
was assigned for minor crimes and offenses and was used in the
form of a public sentence, reprimand or demotion [10; 49 p.]. According to other
sources, the punishment of
tazir
includes verbal warning, smearing black on the
face (in addition to banishment), humiliating the offender by shaving his hair
(but not his beard), destroying the property of the offender, confiscating his
property.
It should be noted that the peculiarity of
tazir
punishment is that it does
not include an officially defined system of sanctions for certain crimes, and law
enforcement officials, especially judges, have the opportunity to choose a
specific punishment based on the identity of the guilty person and the nature of
the crime [9; 113 p.]..
It should be noted that, according to some sources, not only
tazir
, but also
qisas
(retribution) was used for the crime of attempted murder [10; 53 p.].
In addition, in Sharia, when an attempt is made to kill a person, if another
person dies due to the change of the guilty party, the thoughts on the
qualification of the act are given in Section 127 of Crimes of “
Mukhtasarul
Viqaya
”. For instance, “If a person shoots an arrow to kill another person, and
the arrow hits him and kills the second person, the killer will be avenged for the
previous one. For the latter, it is obligatory to pay for the victim’s family” [11;
309 p.].
At the end of the analysis of the rules determining criminal responsibility
for the stages of crime in Uzbekistan from the VIII to the XIX centuries, the
following conclusions can be drawn:
Firstly, despite the fact that the crime, its types, and the basis of
responsibility were not regulated by a specific rules, taking into account that
Sharia rules prevailed in this period, the responsibility for the stages of
committing a crime is defined in the Quran and other sources.
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Secondly, in Islamic law, the formation of intention is expressed as the
unity of action and plan which should be proportional.
Thirdly, the stage of formation of intention in Islamic law is characterized
by its own characteristics. Despite the fact that the concept of completed crime
has not been defined, the occurrence of a socially dangerous consequence is
required as the basis for criminal responsibility for most crimes. In cases where
consequences are necessary for crimes with a material content, if the
consequences have not occurred, a lighter punishment measure has been
assigned.
Fourthly,
tazir
as well as
hadd
punishment was applied to the persons who
committed a crime
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