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IMPROVING THE LEGAL FOUNDATIONS OF RESPONSIBILITY FOR
RESISTING A REPRESENTATIVE OF AUTHORITY
Utkir Khalikov
Independent Researcher at the Higher School of Judges under the Supreme
Council of Judges of the Republic of Uzbekistan
https://doi.org/10.5281/zenodo.13884151
Keywords:
Representative of authority, individual fulfilling civic duty, resistance,
criminal responsibility, Criminal Code, social danger, intent, criminal
personality, punishment.
On May 14, 2018, the President of the Republic of Uzbekistan, Sh.M.
Mirziyoyev, issued a decree regarding "Measures for the Fundamental
Improvement of the Criminal and Criminal Procedure Legislation System,"
highlighting the inconsistency between the social danger characteristics and
severity of sanctions for committing specific types of crimes. It was emphasized
that alternative forms of punishment, incentivizing norms, and public influence
measures were insufficiently applied and ineffective. Tasks for fundamental
improvement were outlined for the newly adopted Criminal Code.
With this decree, the "Concept for Improving the Criminal and Criminal
Procedure Legislation of the Republic of Uzbekistan" was also adopted. The first
section of the Concept is dedicated to improving criminal legislation, and in the
fifth clause of the first part of this section, it is stated that "Effective legal
mechanisms for preventing and eliminating crimes must be created, and citizens
should be instilled with a high legal culture, educating them in the spirit of
adhering to the Constitution and laws."
These tasks impose obligations on both state authority employees and
individuals to strictly adhere to the spirit of legal compliance. The mechanism
for regulating these relations will be defined by established rules. The powers of
state authority employees will be specified in their job descriptions. Any
employee can only act within the scope of their official powers as defined.
Exceeding the powers outlined in the job description will result in illegal
actions. As a result of such actions by an employee, a physical person’s failure to
comply with their orders or resistance may not lead to legal consequences. The
law (Article 219 of the Criminal Code) provides for liability for resisting lawful
demands of a representative of authority. It imposes an obligation on
individuals to obey and comply with lawful demands from representatives of
authority. Therefore, resisting a representative of authority as outlined in
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Article 219 of the Criminal Code leads to liability for resisting lawful demands or
obstructing the fulfillment of lawful duties. For an individual to be considered as
having resisted, it must be substantiated that they acted within the specific
scope of powers defined in their job description.
According to Article 219 of the Criminal Code of the Republic of Uzbekistan,
actively resisting the lawful activities of a representative of authority while
performing official duties can lead to criminal consequences.
First, let’s focus on clarifying the situation related to performing official
duties. It is important to note that tasks assigned to a representative of authority
by law or subordinate legal acts are considered official duties. One particular
aspect that requires special attention is the legality of the actions of the
representative of authority. This means that in this case, the representative
must be fulfilling their duties as defined (assigned) in legal documents.
In this context, it can be agreed with the opinion expressed by PhD,
Professor M.Kh. Rustambaev, who stated: “The official duties of a representative
of authority or an individual fulfilling civic obligations are aimed at ensuring and
protecting legal order and social security, thus the instructions of a
representative of authority or the actions of a citizen must be within the
framework of the law. These service obligations stem from specific categories of
laws applicable to representatives of authority.”
If a person refuses to comply with illegal instructions (demands) from a
representative of authority, such a situation should not necessarily lead to
criminal consequences. However, in each case, it may not always be clear to the
individual whether the demand from the representative of authority is lawful or
not. Clearly illegal demands from a representative of authority (for example, if
they have consumed alcoholic beverages or are acting outside their official
duties) are exceptions to this.
Judicial and investigative bodies should first pay attention to this situation,
meaning they need to examine whether the demands of the representative of
authority are lawful, specifically whether they are fulfilling their assigned duties
and whether there is any abuse of power. When studying the experiences of
foreign countries, it has been shown in English judicial practice (case
precedents) that during the proceedings concerning such crimes, the court must
indeed evaluate the actions of both parties legally.
The reason we are focusing specifically on this issue is that the imposition
of illegal demands or similar instructions by a representative of authority
towards an individual can lead to the commission of other crimes by these
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individuals in most cases. In some instances, this may result in crimes such as
corruption or the use of force and infliction of bodily harm by the individual.
Actions taken by a representative of authority aimed at provoking an
individual’s desire to resist should also be considered illegal. Such actions can
include exceeding the scope of authority, refusing to perform one’s duties, and
infringing on the dignity and personality of the individual. These situations must
certainly be taken into account by judicial and investigative bodies. If the actions
committed by the individual do not indicate the commission of other crimes,
then they cannot be held accountable under Article 219 of the Criminal Code.
The second issue in the analysis is whether the resistance shown by the
individual is active or passive. For liability under Article 219 of the Criminal
Code, the individual’s resistance must be active, and attention should be paid to
specific circumstances regarding this issue.
Although it is stipulated that for an individual to be held accountable under
Article 219 of the Criminal Code of the Republic of Uzbekistan, there must be
active resistance against a representative of authority, the criminal legislation
does not provide a detailed definition of what constitutes active resistance.
Scholars in the field of criminal law have expressed their opinions and
observations on this matter in scientific articles and textbooks; however, there
has yet to be a clear legal norm established regarding this issue. Specifically,
M.Kh.
Rustambaev stated, “Active resistance refers to actions by the accused that
hinder a representative of authority or an individual fulfilling civic duties from
performing their tasks, such as obstructing an arrest, seizing criminal weapons,
conducting searches, restricting freedoms, etc.”
The importance of accurately and correctly qualifying an individual's
actions lies in the fact that if the act is not carried out actively, it does not
constitute a crime, and in such cases, administrative liability may arise. In other
words, accurately qualifying whether the resistance was carried out actively or
passively determines whether the individual has committed a crime or an
administrative offense.
The study of foreign legislation has shown that in the laws of certain
countries, specific actions that constitute resistance are identified as grounds for
criminal liability. In particular, according to the Italian Penal Code, if a person
uses violence or threatens with violence against an official, this situation is
established as a basis for criminal liability. A similar provision is also outlined in
the Dutch Penal Code.
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Conversely, in some countries' criminal legislation, any form of resistance
against state bodies or officials is considered a crime, and in such cases, any act
of resistance serves as a basis for criminal liability.
Based on the analysis of legislation, in order to ensure fair justice, it is
advisable to clearly indicate what constitutes active resistance against a
representative of authority in criminal legislation.
From the above, the following conclusions can be drawn: In cases examined
by the courts regarding Article 219 of the Criminal Code, it is necessary to
provide a legal assessment of the actions of the representative of authority who
is the victim. In this case, it must be clarified whether the demands and
instructions issued by the representative of authority were within the law or
their powers.
Moreover, it is appropriate to define the term “active resistance” as follows:
“active resistance refers to any actions by a person that involve the use of
physical force, obstruction, psychological pressure, intimidation, and coercion,”
which clarifies the concept of active resistance.
References:
1.
The Resolution No. PQ-3723 of the President of the Republic of Uzbekistan
Sh.M.
2.
Mirziyoyev on “Measures for the Fundamental Improvement of the System
of
3.
Criminal and Criminal Procedural Legislation,” May 14, 2018.
4.
Rustambaev M.Kh. Course on Criminal Law of the Republic of Uzbekistan.
Volume 4. Crimes in the Economic Sphere. Crimes in the Field of Ecology. Crimes
Against the Activities of Authorities, Administration, and Public Associations.
Textbook. 2nd edition, revised and expanded – T.: Military-Technical Institute of
the National Guard of the Republic of Uzbekistan, 2018. Page 436.
5.
Penal
Code
of
the
Republic
of
Italy.
Codice
Penale.
https://www.altalex.com/.
