RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF UZBEKISTAN

of May 21, 2004 No. 4

About some questions of application of the law on liberalization of punishments for crimes in the field of economy

Studying of court practice showed that courts generally correctly apply the law on liberalization of punishments on cases on crimes in the field of economy.

At the same time, by hearing of cases, the crimes connected with making in this sphere, there are shortcomings and mistakes in case of application of the law, in particular, concerning qualification of crimes, assignment of punishment.

Courts not in all cases delimit penal act from administrative offense, the continued plunder from repeated that leads to acceptance of unreasoned decisions.

For the purpose of ensuring the correct application of the Law of August 29, 2001 "About modification and amendments in Criminal, Criminal procedure codes and the Code of the Republic of Uzbekistan about the administrative responsibility in connection with liberalization of criminal penalties" for crimes in the field of economy, being guided by article 17 of the Law "About Courts", the Plenum of the Supreme Court of the Republic of Uzbekistan decides:

1. Draw the attention of courts to need of steady observance of requirements of the law on liberalization of punishments by hearing of cases about crimes in the field of economy.

2. According to article 61 of the Code about the administrative responsibility plunder of property of the companies, organizations, organizations by theft, assignments, wastes, abuses of official capacity or frauds in the amount up to thirty basic settlement sizes forms structure of administrative offense.

The administrative responsibility comes also in case of repeated making of such offense if the size of the kidnapped person does not exceed thirty basic sizes of settlement size. At the same time does not matter how many times petty theft is committed.

The size of the kidnapped person is determined proceeding from the size of basic settlement size on the date of making of offense.

In case of cost determination of the kidnapped person it is necessary to proceed from contract, market, exchange prices depending on the specific facts of the case on the date of making of offense.

3. Criminal liability for plunder of property of the companies, organizations, organizations by assignment, waste, abuse of official capacity, fraud and theft (Article 167, of 168, 169 UK) comes only in cases if the amount of the kidnapped person exceeds the size specified in part three of article 61 of the Code of the Republic of Uzbekistan about the administrative responsibility including in the presence of the qualifying signs.

It should be noted that under the law for plunder by theft and fraud of property of citizens criminal liability comes irrespective of the size of the kidnapped person. At the same time, in all cases when the size of the kidnapped person does not exceed thirty basic settlement sizes, bodies of inquiry, the investigations and courts shall discuss taking into account data on the identity of accused (defendant) and compensation of material damage question of the termination of criminal case based on articles 65 and 66 of the Criminal code.

4. Plunder of alien property is considered ended since the moment when the property is withdrawn from ownership of the owner, and the guilty person has real opportunity to dispose or use it at discretion (except for robbery and racketing).

However, if the guilty person took control of someone else's property, but had yet no opportunity to dispose of it as own, the deeds need to be qualified as attempt at plunder (except for robbery and racketing).

It is also impossible to consider ended plunder if part of property with intention on plunder of the whole property is stolen.

5. By law the sentence cannot be based on assumptions. With respect thereto courts shall mean that the fact of shortage of material values which reason of education is not established by the investigation and court cannot be considered as plunder.

For recognition of person guilty of plunder of alien property (article 167 UK) it is necessary to determine the concrete facts testimonial of the fact that this property is turned by the guilty person in own favor or for benefit of other persons.

6. Courts should mean that the correct determination of nature of making of plunder (continued or repeated) has essential value for qualification of deeds.

The continued plunder should be considered the numerous unlawful uncompensated taking of alien property consisting of number of the identical criminal actions covered by common intent and directed to the single purpose, constituting in total one crime.

In case of the continued crime qualification of action of the guilty person depends on the size received by addition of the amounts of damage on all episodes of plunder.

In case of the solution of question whether the crime is repeated, it is necessary to proceed from contents of article 32 of the Criminal code.

In case of qualification of repeated plunder the determining sign is not the total amount of the kidnapped person on all episodes, and only on one of episodes on which the extent of damage is maximum.

7. As assignment or waste of alien property by abuse of official capacities is provided as the qualifying sign in disposition of part two of article 167 UK, such actions of the official of additional qualification under article 192-11 or 205 UK are not subject if the intention of the guilty person is directed to occupancy by someone else's property.

However, if act of the official contains structure of separate crime in the form of the authority misuse or ex-officio full powers which is not connected intentionally on plunder of alien property, the deeds are subject to qualification on cumulative offenses, provided by articles 167 and 205 or 192-11 UK respectively.

8. Explain that in case of entering by the official of obviously false data and records into official documents for the purpose of the simplification or concealment stolen by it, the deeds are subject to qualification on cumulative offenses, provided by articles 167 and 209 or 228 UK respectively.

If official forgery is committed in partnership with other persons which are not subjects of crimes of official, actions of the last are subject to qualification under Articles 28, 209 UK, but not under article 228 UK if they were not accomplices of plunder.

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