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

of April 30, 1999 No. 6

About court practice on cases on plunders of alien property by theft, robbery and robbery

According to Article 53 of the Constitution of the Republic of Uzbekistan the basis of the economy of the country is constituted by property in its different forms. The property is inviolable and is protected by the state, and any infringement of it is recognized illegal.

Studying of court practice showed that courts, generally correctly apply the legislation on cases on plunders of alien property by theft, robbery and robbery. At the same time, in their practical activities there are separate mistakes, shortcomings. On number of problems there is no unity of understanding of requirements of the law.

For the purpose of elimination of the available shortcomings, and also the correct and exact application of the legislation by courts for this category, based on article 17 of the Law "About Courts" Plenum of the Supreme Court decides:

1. Secret plunder of alien property is theft if it is made as in absence of the victim or other persons, and at their presence, but is imperceptible for them. If the victim or strangers saw that there is withdrawal of property, however the guilty person, proceeding from surrounding situation, considered that he acts imperceptibly, the deeds also should be qualified as theft.

2. The actions begun as secret plunder of alien property, but then found by the victim or other persons and, despite it, continued by the guilty person for the purpose of occupancy by property or its deduction using it of violence, not life-threatening or health, or with threat of application of such violence, shall be qualified as robbery, and in case of attack using violence, life-threatening or health, or with threat of application of such violence as robbery.

Violent acts, committed cannot be considered by the guilty person after the end of secret plunder of alien property for the purpose of avoidance of detention as robbery or robbery. Depending on nature of violence and the come effects, the deeds should be qualified as theft, in the presence of signs of other crimes on set with them.

The plunder committed at persons obviously for the guilty person not capable to understand values of the events (for example, on the early childhood, owing to mental inferiority, the strong alcoholic or drug intoxication sleeping, etc.) shall be qualified as secret plunder of alien property.

The secret plunder of alien property committed from the clothes which are on the victim from bag, suitcase and other hand luggage which are in hands or is direct in case of the victim, it is considered pocket theft and shall be qualified on the Item "and" of part 2 of article 169 UK.

3. Plunder is considered open (robbery) if the guilty person understood that he takes control of someone else's property in the presence of the victim or other persons and they understand criminal nature of its actions.

In case of qualification of deeds on the Item "and" of part 2 Art. 166 of UK should mean that:

- the violent robbery takes place not only in case of the actual use of violence, not life-threatening or health, but also in case of threat of application of such violence;

- violence or threat of its application can be directed as against person, in ownership, maintaining or under protection of which there was property, and against other persons interfering open occupancy by someone else's property;

- not life-threatening or health it is necessary to understand causing slight injuries as violence. It can be expressed also in such violent acts which are connected with causing to the victim of physical pain or restriction of its freedom.

4. In case of racketing otgranicheniya from robbery or robbery it must be kept in mind that in case of racketing the threat of violence is directed to receipt of property in the future, but not at the time of threat application. If the threat was carried out, the deeds are subject to qualification under the article of the Criminal Code on racketing and, in the presence of the bases, and under Article providing responsibility for actions which are made in case of threat realization.

5. Plunder of alien property by theft and robbery is considered ended if the property is withdrawn and the guilty person has real opportunity to use or dispose of it at discretion; robbery - from the moment of the attack integrated using or to threat of use of violence life-threatening and health of the victim.

6. Under use of violence, life-threatening, it is necessary to understand the circumstances testimonial of reality of threat for the victim's life (for example, suffocation of the victim, deduction of his head as water, etc.).

Under use of violence, hazardous to health, it is necessary to understand the actions which caused to the victim bodily harms which entailed disorder of health or could create threat of causing heavy bodily harms (blow in temple, solar plexus, etc.).

In law sense violence in case of robbery can be both physical, and mental.

7. One of signs of occupancy of property by robbery, stipulated in Item "and" parts 2 of article 164 UK, is use of weapons or other objects used as weapon.

In case of recognition of weapon or objects which can be used as weapon crime instruments courts should be guided by the Law of the Republic of Uzbekistan "About weapon".

In case of threat of obviously unusable weapon or imitation of weapon (for example, prototype of the gun or starting gun) without the purpose of use of these objects for causing bodily harms, life-threatening and health of the victim, it is impossible to regard such actions as robbery using weapon.

When using in the course of assault of firearms on which permission is required and also of weapon or other objects (explosive, toxic agents, etc.) used as weapon, actions of the guilty person should be qualified on cumulative offenses.

8. According to Item 5 of the Resolution of the Plenum of the Supreme Court of the Republic of Uzbekistan of April 17, 1998 No. 11 "About some questions which arose in court practice on cases on crimes in the field of economy" in case of legal treatment of actions of plunder of alien property, guilty of making, irrespective of its method (theft, robbery, robbery), the crime is qualified by that part of the relevant article of the Criminal code which provides more strict liability, and by other parts of this Article does not require additional qualification. For example, in case of qualification of crime as regards the 4th article 169 UK on the basis of plunder in especially large size, additional qualification in parts 1, 2 and 3 these articles of the Criminal Code is not required.

In cases of making of the continued plunder of action of the guilty person it is necessary to qualify taking into account the total amount of the kidnapped person.

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