5. Prosecutorial considerations
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5.1 Police procedures

5.1.1 When do the police get involved in domestic disputes or legal actions?

The police are to be constantly involved in legal actions related to domestic violence. For instance, the police are obliged to take measures to prevent harassment and violence, including identification and elimination of their causes and conditions, and to carry out preventive work on a  regular basis with persons who harass and commit violence against women. Certainly, the police will react if a victim calls the police.

5.1.2 What circumstances effect law firm involvement?

Advocates enjoying a state license, rather than commercial law firms without such license, are entitled to perform professional representation of clients in civil, criminal, economic and administrative cases in courts.[3]

Uzbekistani advocates act not only under a contract with a client but also as public defenders appointed by the state at its expense to represent a defendant in a criminal case.

5.2 Standard of proof

5.2.1 Is proof required by any legal means?

In a criminal procedure, the standard of proof is quite high. As a rule, police officers, investigators, prosecutors and judges are obliged to interrogate suspects, accused, defendants, victims and witnesses; listen to expert opinions; examine material evidence; and read protocols and other documents out loud. The judge is to pass a sentence only on the basis of the evidence that was examined at the hearing.

We note that the procedures prescribed by the Women Protection Law are as such not a part of the criminal procedure. Therefore, applicable standards of proof are only being created.

5.2.2 Are there any requirements regarding evidence and documents?

Requirements for evidence and documents are quite strict. In particular, the judge may not rely on evidence and documents that do not meet the following criteria:[4] (i) the evidence must be obtained by a person authorized to carry out the procedural action during which the evidence was obtained; (ii) factual data should be obtained only from prescribed sources like witness statements, videotapes, audiotapes, and protocols of investigative actions; (iii) the evidence must be obtained in compliance with the rules and procedure for the procedural action during which such evidence was obtained; (iv) upon receipt of evidence, all requirements of the law on recording the course and results of the investigative and judicial action must be observed.

Again, the above rules are not directly applicable to the procedures under the Women Protection Law.

5.2.3 Is proof "beyond a reasonable doubt" required?

In the course of criminal proceedings, the law enforcing bodies are to collect all relevant and reliable evidence that indisputably establishes the truth about each and every relevant circumstance of the case (Article 95 of the Criminal Procedure Code). The evidence is deemed relevant even if it represents information that refutes or questions the existence of a wrongful action, guilt etc.

Consequently, this strict statutory standard of proof looks higher than the proof "beyond a reasonable doubt," i.e., the kind of doubt that would make a reasonable person hesitate to act,[5] which may lead to considerable difficulties in imposing sanctions on the accused. Such difficulties may also be due to deep-rooted patriarchal attitudes that are reflected in women's unequal status in marriage and family relations as well as harmful practices that discriminate against women, such as child and/or forced marriage and polygamy.[6]

Again, the above rules are not directly applicable to the procedures under the Women Protection Law.
5.2.4 Is the standard of proof different for ex parte orders?
As compared to the above-mentioned standard of indisputable proof, it appears that the standard of proof for the protective order is lower because it is to be issued within 24 hours from the moment the police officer established the fact of harassment and violence or their threat. Furthermore, the issuance of the protective order is not a part of criminal proceedings.
5.3 Affirmative defenses

5.3.1 Are affirmative defenses available to the accused?

The defendant may raise affirmative defenses under Article 35 of the Criminal Code, with the most relevant being the insignificance of the wrongdoing, necessary (justifiable) defense and committing the criminal act as a result of physical or mental coercion or threat.

There are also crimes where corpus delicti includes elements of affirmative defense like emotional disturbance caused by unlawful violence or grave insult on the part of the victim, as well as other unlawful actions of the victim, which resulted or could lead to death or harm to the health of the criminal or a person close to him. The sanctions for such crimes are milder; for instance, the maximum imprisonment for assault is three (rather than five) years.

5.3.2 Is willful intent required?
As a rule, willful intent is required to commit a domestic violence crime. Still, there are also criminal acts that can be committed through negligence (for instance, negligent infliction of bodily injuries under Article 111 of the Criminal Code).
5.3.3 Are false accusations punishable for the victim?

The victim may be punished for defamation (Article 139 of the Criminal Code), knowingly false allegation (Article 237 of the Criminal Code) or perjury (Article 238 of the Criminal Code).

5.3.4 How is consent discussed in the law?

Sexual intercourse with a person known to be under 16 years of age, regardless of consent of such person, is punishable by imprisonment of up to five years (Article 128 of the Criminal Code). The age of marriage is 18 years of age for both men and women.

The corpus delicti of a rape, as the Supreme Court explains, consists of sexual intercourse with a female against her will, committed using violence and threats or due to the helpless condition of the victim. The court further explains that violence or threats will necessarily be proven for the defendant's actions to qualify as rape. The Supreme Court does not discuss consent; neither does it get into more detail on what constitutes "against the victim's will" and how this will be proved.

5.3.5 Is self-defense or insanity a defense?

Self-defense may qualify as necessary (justifiable) defense (see item 6.1. of this memorandum).

As for insanity, a person who, at the time of the commission of a socially dangerous act, was in a state of insanity, that is, could not realize the meaning of his actions (inaction) or control them due to a chronic or temporary mental disorder, dementia or other mental disorder, is not subject to criminal liability.

5.4 Witness status

5.4.1 What is a witness's duty to testify honestly and completely?

A witness is criminally liable for refusing to give testimony and for giving false testimony. The completeness of testimony is not specifically described in the law. The relevant warning is to be mentioned in the interrogation protocol and the court hearing protocol under Article 117 of the Criminal Procedure Code. Perjury is a crime.

5.4.2 Who may abstain from testifying in certain situations?

There are different situations in which a person in a particular capacity may abstain from testifying. For instance, an Uzbekistani advocate may abstain from testifying as a witness about the circumstances that became known to him in connection with the performance of his duties. Also, a member of an Uzbekistani legislative body (i.e., the Legislative Chamber or the Senate) may not be arrested or held criminally liable without such body's consent.

5.4.3 What potential "excuses" can a witness raise to refuse to testify in a domestic violence action?
The close relatives of the suspect, accused or defendant may abstain from giving testimony on the circumstances related to the suspect, accused or defendant (Article 116 of the Criminal Procedure Code).
5.4.4 What is the impact of domestic violence on witnesses who are children?

The consent and presence of a legal representative, an adult close relative or teacher is a condition for a child witness or victim to give testimony.

5.4.5 Can children be called upon to testify?

Children may be called upon to testify.

5.4.6 What is the effect of a child victim on the charges against the offender?

Domestic violence against a child usually leads to a more severe liability.

Generally, a crime or administrative offense against a minor is an aggravating circumstance.[42] In addition, certain crimes and administrative offenses imply higher sanctions if committed against a minor.

5.5 Penalties and sentencing; penalty enhancements

5.5.1 What are the penalties and sentencing laws for first-time domestic violence offenses?

There are no specific criminal law rules for first-time domestic violence offenses. Rather, the general rule of Article 66 of the ะกriminal Code applies, according to which a person who for the first time committed a crime that does not pose a great public danger, or a less serious crime, may be released from liability if he has acknowledged guilt, sincerely repented, actively contributed to the crime solving and made good the harm caused.

5.5.2 Are there criminal penalties?

Criminal acts of great public danger (such as rape or torture) are subject to criminal liability and penalties (mainly, imprisonment). At the same time, administrative fines are imposed for offenses like breach of the age of marriage, including by way of facilitation of such breach by parents or religious authorities (Article 125.1 of the Criminal Code, Article 47.3 of the Administrative Offense Code).

5.5.3 What is the result of a violation of an existing order for protection?

 No specific consequences are provided for in the Women Protection Law, the Criminal Code and the Administrative Offense Code. Article 194 of the Administrative Offense Code may apply, providing for the administrative fine of up to two base calculations valued at approximately USD 40 (or, in case of repeated violation, arrest of up to 15 calendar days) for failure to comply with the order of the police officer to abstain from the wrongdoing.

5.5.4 What fines and other penalties are imposed besides incarceration and liberty restriction?

Besides incarceration and liberty restriction, fines and community service are common sanctions for criminal and administrative domestic violence acts.

5.6 Post-release restrictions

5.6.1 Does the law notify the victim of the offender's release from custody?

There is no requirement to notify a victim. Article 173 of the Correctional Code is not aimed at protection of victims. Rather, it aims to ensure resocialization of criminals and thus requires to notify relatives only if a disabled person, a child, a pregnant woman or a woman with children is released from custody.