Commentary on Article 80. Criminal Liability of Minors of the Criminal Code of the Republic of Kazakhstan

1. Minors to whom the provisions of this Section apply shall be persons who, at the time of committing a criminal offense, have attained the age of fourteen but have not attained the age of eighteen.

2. Minors who have committed a criminal offense may be sentenced to punishment or subjected to compulsory educational measures.

Under the criminal legislation of the Republic of Kazakhstan, the criminal liability of minors is regulated within the framework of general criminal legislation. The specific features of the criminal liability of minors are established in Section 6 and Chapter 2 of the Criminal Code. All institutions of criminal law apply to minors.

The functional purpose of Section 6 and Chapter 2 of the Criminal Code is to adjust the general provisions of the law and supplement them as they apply to minors. This is обусловлено by the specific characteristics of their physical, moral, cultural and spiritual development. Moreover, this is consistent with the principles of humanism and justice reflected in the Convention on the Rights of the Child, approved by the United Nations General Assembly and which entered into force on October 15, 1990.

The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules, adopted at the 96th plenary meeting of the United Nations General Assembly on November 29, 1985) state that the juvenile justice system is primarily aimed at ensuring the well-being of the minor and ensuring that any measures applied to juvenile offenders are always proportionate both to the characteristics of the offender's personality and to the circumstances of the offense.

Minors are more vulnerable than adults and are less capable of protecting themselves. Therefore, judicial proceedings in cases involving criminal offenses committed by minors must be based on strict compliance with the requirements of substantive and procedural legislation, contribute as much as possible to ensuring the interests and protecting the legitimate rights of minors, imposing fair punishment, and preventing the commission of new criminal offenses.

Measures involving the isolation of minors should be applied only in cases of extreme necessity. Thus, in paragraph 18 of its Regulatory Resolution dated April 11, 2002, “On Judicial Practice in Cases Involving Criminal Offenses Committed by Minors and Their Involvement in the Commission of Criminal Offenses and Other Antisocial Acts,” the Supreme Court of the Republic of Kazakhstan directs courts to resolve, when delivering a judgment against a minor, the issues listed in Articles 390 and 544 of the Criminal Procedure Code.

At the same time, the court may decide to impose a sentence of imprisonment on a minor only when their correction and rehabilitation are impossible without isolation from society, stating in the judgment the reasons for the decision taken.

Unjustified imposition of long-term imprisonment on minors must not be allowed.

If a minor is sentenced to imprisonment, taking into account the rules provided for in Parts 2 and 3 of Article 56 of the Criminal Code, then, in accordance with paragraph 19 of the above-mentioned Resolution of the Supreme Court, one-half and three-quarters of the term or amount of the most severe type of punishment must be calculated respectively from 10 or 12 years of imprisonment, which could have been imposed on the minor for a completed criminal offense.

Section 6 of the Criminal Code contains provisions regulating the system and types of punishments, their imposition on minors, and exemption from criminal liability and punishment.

The provisions regulating the specific features of the criminal liability of minors are consolidated and systematized and make it possible to take into account the age-related psychophysiological characteristics of this category of persons at every stage of the imposition and execution of punishment and the expungement of a criminal record.

Under the Criminal Code, minors are persons who, at the time of committing a criminal offense, have attained the age of fourteen but have not attained the age of eighteen. At the same time, as stated in paragraph 2 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases Involving Criminal Offenses Committed by Minors and Their Involvement in the Commission of Criminal Offenses and Other Antisocial Acts,” the age at which criminal liability arises for committing criminal offenses is established by Article 15 of the Criminal Code of the Republic of Kazakhstan. In cases involving minors, the body conducting criminal proceedings is obliged to take measures to establish the exact date of birth (day, month and year of birth) of the person being prosecuted. A person is considered to have attained a certain age not on their birthday, but beginning from the following day. In the absence of documents confirming age, or if there are doubts as to the authenticity of such documents, an expert examination must be ordered in accordance with subparagraph 3) of Part 1 of Article 271 of the Criminal Procedure Code. In such cases, the date of birth shall be considered to be the last day of the year specified by the experts. Where experts determine a person's age within a minimum and maximum range (for example, from 14 to 15 years), the minimum age proposed by the expert examination must be used.

The Beijing Rules (paragraph 4.1) establish that, in legal systems recognizing the concept of a minimum age of criminal responsibility for minors, the lower age limit must not be set at an excessively low level, taking into account aspects of emotional, spiritual and intellectual maturity. In commenting on this provision, the Beijing Rules explain that the minimum age limits for criminal responsibility vary considerably depending on historical and cultural characteristics. The modern approach consists in determining a child's ability to withstand the moral and psychological aspects associated with criminal responsibility, that is, determining whether a child may be held responsible for clearly antisocial conduct in view of the individual characteristics of their perception and understanding. If the age limit for criminal responsibility is established at an excessively low level or is not established at all, the concept of responsibility becomes meaningless.

In general, there is a close relationship between the concept of responsibility for an offense or criminal conduct and other social rights and obligations, such as marital status, civil majority, etc. Therefore, efforts should be made to establish a reasonable lower age limit that could be applied internationally.

The minimum age of a minor as a special participant in criminal legal relations is the minimum age of criminal responsibility. Kazakhstan's criminal law limits the minimum age of criminal responsibility to 14 years. The list of crimes for which liability is established from the age of 14 is set out in Part 2 of Article 15 of the Criminal Code. In establishing this list, the legislator relied on the degree of public danger posed by the respective acts provided for in the Criminal Code, their prevalence among minors, and the ability of persons of this age to understand the nature and severity of their consequences. At the same time, if a minor has attained the age of criminal responsibility but, due to a delay in mental development unrelated to a mental disorder, was unable, at the time of committing a criminal offense, to fully understand the actual nature and public danger of their actions (omissions) or to control them, such minor shall not be subject to criminal liability (Part 3 of Article 15 of the Criminal Code).

At the same time, it should be taken into account that, in accordance with paragraph 4 of the above-mentioned Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002, courts are advised to order a comprehensive psychological and psychiatric examination whenever there is information providing grounds to presume that a minor has an intellectual disability, in order to determine the level of their mental development.

Young children who have not attained the age of 14 are not subject to criminal liability. In this regard, the legislator proceeds from the fact that a young child is unable to fully understand the actual nature and public danger of their actions (omissions) or to control them.

Part 2 of the article under commentary establishes that minors who have committed a criminal offense may be sentenced to punishment or subjected to compulsory educational measures. The resolution of this issue depends primarily on the nature and degree of public danger of the act committed by the minor, as well as on the circumstances of the case, the conditions of upbringing, etc.

When considering the issue of imposing punishment on minors, courts should bear in mind that only the types of criminal punishment specified in Article 81 of the Criminal Code may be applied to them, and the terms and amounts of such punishments may not exceed the limits established by that Article. In addition, the circumstances specified in Articles 82 and 83 of the Criminal Code should be taken into account, and the possibility of applying compulsory educational measures to the minor in the particular case should be considered in light of the circumstances of the case and the minor's personality.

For the proper resolution of issues concerning the prosecution of a minor and the imposition of punishment on them, the establishment of the circumstances provided for in Articles 113 and 531 of the Criminal Procedure Code is of substantial importance. It is also necessary to establish such individual personality traits of the minor as suggestibility, excitability, dependence, a tendency toward showing off, leadership, fantasizing and others. For these purposes, persons responsible for the minor's upbringing and other persons should be questioned; official documents concerning the minor's health and intellectual development should be requested; and the minor's personal documents (diaries, notes, letters, audio recordings, etc.) should also be examined.

The law distinguishes two groups among minors: persons aged 14 to 16 and persons aged 16 to 18. The law links the specific features of criminal liability to this age classification.

The limits of the criminal liability of minors are determined by the fact that the law gives priority to protecting the rights and legitimate interests of the minor offender. This is reflected in the following:

the law restricts the criminal liability of minors. This restriction is determined by the age criterion (Article 15 of the Criminal Code) or by the social, factual and legal status of the adolescent;

the minority of the offender is regarded by criminal law as a circumstance mitigating criminal liability and punishment (subparagraph 2) of Part 1 of Article 53 of the Criminal Code). Mitigation of criminal liability and punishment is one of the characteristic features of the criminal liability of minors. In criminal legislation, such mitigation is reflected not only in the content of subparagraph 2) of Part 1 of Article 53 of the Criminal Code, but also in the reduction of the lower limits and restriction of the upper limits of punishment (Article 81 of the Criminal Code), the more favorable grounds for parole (Article 86 of the Criminal Code), and the reduction of limitation periods and criminal record periods (Articles 88 and 89 of the Criminal Code);

among the specific features of the criminal liability of minors, the principles of its maximum individualization should also be recognized, taking into account the characteristics of the individual's personality and the social environment that determines the adolescent's life and upbringing and their criminal conduct. Thus, paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002, states that, when imposing punishment on minors, courts are obliged, in addition to the circumstances specified in Article 52 of the Criminal Code, to take into account their living and upbringing conditions (an unfavorable family environment, rude and sometimes cruel treatment of minors by their parents, close relatives, etc.), their level of mental development, personality characteristics (the presence of a mental disorder, lack of emotional balance, irritability, etc.), the motives for committing criminal offenses (childish mischief, doing something “for the sake of the group,” envy, vindictiveness, etc.), and the influence of older persons on the minor;

the specific features of the criminal liability of minors are characterized by the existence of special criminal law measures — compulsory educational measures, placement of a minor in an educational organization with a special regime of detention (subparagraph 5) of Part 1 of Article 83, Part 1 of Article 84 of the Criminal Code), and the establishment of medium-security institutions within the penal enforcement system for the detention of minors.

When selecting a criminal law measure of influence, courts, in accordance with the Beijing Rules, must be guided by the following principles:

measures of influence must always be proportionate not only to the circumstances and severity of the offense, but also to the circumstances and needs of the minor, as well as to the needs of society;

decisions restricting the personal liberty of a minor must be taken only after careful consideration of the matter, and such restrictions must be reduced to a minimum wherever possible;

a juvenile offender should not be deprived of personal liberty unless they have been found guilty of committing a serious act involving violence against another person or of repeatedly committing other serious offenses, and where no other appropriate measure of influence is available;

when considering a minor's case, the question of their well-being must serve as the determining factor.

When applying criminal legislation to minors, a number of general provisions must be taken into account. Thus, a criminal record for a crime committed before attaining the age of 18 is not taken into account when recognizing recidivism or dangerous recidivism of crimes (Part 3 of Article 14 of the Criminal Code); persons who committed a crime before attaining the age of 18 may not be sentenced to the death penalty (Part 2 of Article 47 of the Criminal Code) or life imprisonment (Part 4 of Article 46 of the Criminal Code); the minority of a person in itself constitutes a mitigating circumstance (subparagraph 2) of Part 1 of Article 53 of the Criminal Code), etc.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honored Figure of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Member of the Scientific Advisory Councils under the Constitutional Council of the Republic of Kazakhstan and the Supreme Court of the Republic of Kazakhstan, Member of the Working Group on the Reform of the Law Enforcement System under the Security Council of the Republic of Kazakhstan, Honored Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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