Commentary on Article 81. Types of Punishments Imposed on Minors under the Criminal Code of the Republic of Kazakhstan

1. The types of punishments imposed on minors are:

2) deprivation of the right to engage in certain activities;

3) a fine;

4) corrective labor;

5) community service;

6) restriction of liberty;

7) deprivation of liberty.

2. Deprivation of the right to engage in certain activities shall be imposed on minors for a period of one to two years.

3. A fine shall be imposed only if the convicted minor has independent earnings or property that may be subject to enforcement. A fine shall be imposed in an amount ranging from five to one hundred monthly calculation indices.

4. Corrective labor shall be imposed on minors who have independent earnings or other permanent income, in an amount ranging from five to one hundred monthly calculation indices.

5. Community service shall be imposed for a period of ten to seventy-five hours, shall consist of performing work appropriate to the minor's abilities, and shall be performed during time free from studies or the minor's main employment. The duration of the performance of this type of punishment by persons under the age of sixteen shall not exceed two hours per day, and by persons aged sixteen to eighteen — three hours per day.

6. Restriction of liberty shall be imposed on minors for a period of up to two years, and, in the event of replacement of the unserved part of a sentence of deprivation of liberty with restriction of liberty, for the entire remaining unserved period of the sentence.

7. Deprivation of liberty may be imposed on minors for a period not exceeding ten years, and for aggravated murder or an act of terrorism, or for an aggregate of criminal offenses, one of which is aggravated murder or an act of terrorism, for a period of twelve years. Deprivation of liberty shall not be imposed on minors who have committed a minor or medium-gravity crime not associated with causing death.

8. Deprivation of liberty shall be served by convicted minors in medium-security institutions of the penal enforcement system intended for the detention of minors.

9. Repealed by Law of the Republic of Kazakhstan dated 18 April 2017 No. 58-VI.

The court may instruct the body executing the punishment to take into account certain personal characteristics of the convicted minor when dealing with them.

The age-related characteristics of the criminal liability of minors are reflected in the Criminal Code not only in the range of criminal offenses, but also in the system of punishments applied to minors.

The Criminal Code does not provide for specific types of punishments applicable exclusively to minors. However, not all types of punishments provided for in the General Part of the Criminal Code (Article 40 of the Criminal Code) may be applied to minors.

In the article under comment, the legislator has provided an exhaustive list of the types of punishments imposed on minors. Of the seven principal types of punishment provided for in Article 40 of the Criminal Code for convicted adults, only five may be applied to minors, while of the four additional types, only one may be applied. Such types of punishment as arrest, the death penalty, confiscation of property, deprivation of a special, military or honorary title, class rank, diplomatic rank, qualification class or state awards, deprivation of the right to hold a certain position, expulsion from the Republic of Kazakhstan of a foreigner or stateless person may not be imposed on minors due to their social status or the excessive severity of certain types of punishment. This approach is justified by the specific nature of offenses committed by minors, the particular objectives pursued by punishment in relation to juvenile offenders, and the fact that they have not yet fully understood their role in society.

Minors may not be sentenced to life imprisonment or the death penalty, as these punishments violate the rights of the child recognized under international law. According to the Convention on the Rights of the Child, adopted by the United Nations General Assembly on 20 November 1989, no child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither the death penalty nor life imprisonment without the possibility of release shall be imposed for offenses committed by persons under eighteen years of age.

The Criminal Code reflects the specific features of applying the aforementioned types of punishment to minors. In particular, the punitive elements of the types of punishment imposed on minors are substantially reduced compared with the punitive content of the same types of punishment applied to adults.

The list of punishments imposed on minors begins with deprivation of the right to engage in certain activities. It should be noted that among the types of punishment provided for in Article 40 of the Criminal Code, a fine is listed first as the mildest type of punishment. It should also be noted that, pursuant to subparagraph 3) of part 3 of Article 40 of the Criminal Code, deprivation of the right to hold a certain position or engage in certain activities is provided for as an additional punishment. Minors may be imposed only one of these forms of prohibition, namely deprivation of the right to engage in certain activities, as a principal type of punishment.

According to part 2 of the article under comment, deprivation of the right to engage in certain activities shall be imposed on minors for a period of one to two years. For adults, deprivation of the right to engage in certain activities shall be imposed for a period of one to ten years (part 2 of Article 50 of the Criminal Code).

A court judgment depriving a convicted person of the right to engage in certain activities is binding on the authorities authorized to revoke permits to engage in the relevant type of activity. In accordance with part 2 of Article 76 of the Penal Enforcement Code, such authorities are required, no later than three working days after receiving a copy of the court judgment that has entered into legal force and notification from the probation service, to revoke the permit to engage in the type of activity prohibited to the convicted person, seize the relevant document granting that person the right to engage in the specified activity, and send a notification thereof to the probation service.

Officials of the authorities authorized to revoke permits to engage in certain activities who are guilty of failing to execute a court judgment on deprivation of the right to engage in certain activities shall bear liability established by law (part 3 of Article 76 of the Penal Enforcement Code).

It is advisable to deprive a minor of the right to engage in an activity that they previously pursued and that contributed to the commission of the offense. Furthermore, deprivation of a minor's right to engage in certain activities should contribute to achieving the objectives of punishment and should not hinder their professional development.

The prohibition established by a court judgment applies not only in cases where a minor engages in professional activities in state organizations, but also where they do so privately or in organizations with private ownership. For example, a prohibition on engaging in vehicle repair and maintenance means that the person is prohibited from engaging in any activity related to the repair or maintenance of motor vehicles throughout the entire period specified in the judgment. A person dismissed from the position of motor vehicle repair and maintenance mechanic at a state enterprise on the basis of a court judgment may not be employed in a position involving activities related to the repair or maintenance of motor vehicles at a privately owned enterprise either.

According to part 3 of the article under comment, a fine shall be imposed only if the convicted minor has independent earnings or property that may be subject to enforcement. A fine is a monetary penalty payable to the state, imposed within the limits established by criminal legislation.

A fine, as a type of punishment, entails financial consequences for the convicted person; therefore, its amount in each specific case shall be determined by the court, taking into account the gravity of the criminal offense, the convicted person's financial and family circumstances, and their ability to receive wages or other income (part 3 of Article 41 of the Criminal Code).

The amount of a fine imposed on minors is significantly reduced. Whereas fines imposed on adults convicted of criminal misdemeanors are set within the range of twenty to two hundred monthly calculation indices, and for crimes within the range of two hundred to ten thousand monthly calculation indices or in a multiple amount (part 2 of Article 41 of the Criminal Code), minors are subject to fines ranging from five to one hundred monthly calculation indices. At the same time, a fine shall be imposed only if the convicted minor has independent earnings or property that may be subject to enforcement.

The procedure for executing a punishment in the form of a fine is regulated by Chapter 10 of the Penal Enforcement Code.

According to part 4 of the article under comment, corrective labor shall be imposed on minors who have independent earnings or other permanent income, in an amount ranging from five to one hundred monthly calculation indices. When imposing corrective labor, the court determines its amount taking into account the gravity of the criminal offense and the convicted person's financial and family circumstances. These criteria are identical to those applied when imposing a fine. For adults convicted of criminal misdemeanors, corrective labor is established within the range of twenty to two hundred monthly calculation indices, and for crimes, within the range of two hundred to ten thousand monthly calculation indices.

The procedure for executing a punishment in the form of corrective labor is regulated by Chapter 11 of the Penal Enforcement Code.

The legislator has defined in detail the procedure for involving minors in community service. In accordance with part 5 of the article under comment, community service shall be imposed for a period of ten to seventy-five hours and shall consist of performing work appropriate to the minor's abilities; it shall be performed by the minor during time free from studies or their main employment. The duration of the performance of this type of punishment by persons under the age of sixteen shall not exceed two hours per day, and by persons aged sixteen to eighteen — three hours per day. According to part 2 of Article 43 of the Criminal Code, community service for adults shall be imposed for criminal misdemeanors for a period of twenty to two hundred hours, and for minor and medium-gravity crimes for a period of two hundred to one thousand two hundred hours. Community service shall be performed for no more than four hours per day, with the convicted person being released from their employment duties at their principal place of work for the duration of such service, or performing it during time free from studies.

The procedure for executing a punishment in the form of community service is regulated by Chapter 12 of the Penal Enforcement Code.

Restriction of liberty is imposed on convicted minors as a principal punishment. It may not be imposed as an additional punishment. A punishment in the form of restriction of liberty is served by a minor at their place of residence without isolation from society, subject to compliance with the obligations established by the court (part 2 of Article 44 of the Criminal Code).

In accordance with part 6 of the article under comment, restriction of liberty shall be imposed on minors for a period of up to two years, and, in the event of replacement of the unserved part of a sentence of deprivation of liberty with restriction of liberty, for the entire remaining unserved period of the sentence.

When imposing restriction of liberty, the court places one or more obligations on the convicted minor: not to change their permanent place of residence, employment or study without notifying the authorized state body exercising supervision over the conduct of the convicted person; not to visit certain places; not to leave their place of residence during time free from studies and work; and not to travel to other localities without the permission of the probation service. The court may also impose other obligations on the minor that contribute to their rehabilitation. For adults, restriction of liberty consists of establishing probation supervision over the convicted person for a period of six months to seven years and involving them in compulsory labor for one hundred hours annually throughout the entire period of serving the sentence.

The execution of a punishment in the form of restriction of liberty is regulated by Chapter 13 of the Penal Enforcement Code.

The most severe type of punishment applicable to minors is deprivation of liberty. The specific features of this punishment when applied to minors concern the duration of the sentence.

In part 7 of the article under comment, the legislator has established the rules for imposing this type of punishment on minors: the maximum period for which deprivation of liberty may be imposed on minors is ten years, and for aggravated murder or an act of terrorism, or for an aggregate of criminal offenses, one of which is aggravated murder or an act of terrorism, twelve years. Deprivation of liberty shall not be imposed on minors who have committed a minor or medium-gravity crime not associated with causing death. In this regard, the term of deprivation of liberty, both for a single crime and under the aggregate of crimes and aggregate of judgments, may not exceed ten years.

Deprivation of liberty for a period exceeding the specified term, up to twelve years, may be imposed on minors only for aggravated murder or an act of terrorism. In this case, the term of deprivation of liberty imposed under the aggregate of crimes and aggregate of judgments may not exceed the term imposed for aggravated murder (i.e., twelve years).

According to paragraph 9 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Imposing Criminal Punishment,” when considering the issue of imposing punishment on minors, courts must take into account that only the types of criminal punishment specified in Article 81 of the Criminal Code may be applied to them, and that their terms and amounts 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 in each specific case, having regard to the circumstances of the case and the personality of the minor, the possibility of applying compulsory educational measures to them should be considered.

If a minor is sentenced to deprivation of liberty, taking into account the rules provided for in parts 2 and 3 of Article 56 of the Criminal Code, one-half or three-quarters of the term or amount of the most severe type of punishment must be calculated, respectively, from ten or twelve years of deprivation of liberty that may be imposed on a minor for a completed criminal offense. Similar rules for calculating the terms of punishment for a minor must also be taken into account when imposing punishment pursuant to the requirements of part 2 or 3 of Article 55 of the Criminal Code.

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” states that a court may decide to impose deprivation of liberty on a minor only when their rehabilitation and re-education are impossible without isolation from society, and the reasons for the decision must be stated in the judgment.

Where a person commits several crimes, some of which were committed before reaching the age of eighteen and others after reaching adulthood, when imposing punishment under the aggregate of crimes, the court must first impose punishment for the crimes committed before the age of eighteen, taking into account the requirements of Article 81 of the Criminal Code, then impose punishment for the crimes committed after reaching adulthood, and determine the final punishment in accordance with the rules of Article 58 of the Criminal Code.

Based on the content of part 1 of Article 81 of the Criminal Code, the additional punishment in the form of confiscation of property may not be applied to persons who committed a criminal offense while under the age of eighteen. If the sanction of an article of the Special Part of the Criminal Code of the Republic of Kazakhstan provides for confiscation of property as a mandatory additional punishment, the courts must justify its non-application in the judgment by referring to Article 81 of the Criminal Code.

In accordance with part 1 of Article 46 of the Criminal Code, deprivation of liberty consists of isolating a convicted person from society by sending them to a penal enforcement institution.

The United Nations Rules for the Protection of Juveniles Deprived of their Liberty state that “...the confinement of a juvenile in a correctional institution should always be used as a measure of last resort and for the minimum necessary period of time.”

Part 8 of Article 81 of the Criminal Code determines the type of penal enforcement institution in which convicted minors serve their sentences of deprivation of liberty — a medium-security institution of the penal enforcement system intended for the detention of minors.

The specific features of serving a sentence of deprivation of liberty by convicted minors are regulated by Chapter 24 of the Penal Enforcement Code.

Taking into account the specific characteristics of a minor's mental and physical condition, the court, pursuant to part 10 of the article under comment, may instruct the body executing the punishment to take into account certain personal characteristics of the convicted minor when dealing with them.

In paragraph 32 of the previously mentioned Regulatory Resolution, the Supreme Court of the Republic of Kazakhstan recommends that courts assign cases involving criminal offenses committed by minors to the most experienced and qualified judges; where necessary, consider separating the case concerning the minor into separate proceedings and restricting the publicity of the court hearing; and, when imposing a suspended sentence or a punishment not involving deprivation of liberty, or when applying compulsory educational measures, send notifications thereof to a specialized state body and assign it the task of monitoring the convicted person's conduct.

In concluding this commentary on Article 81 of the Criminal Code, I would like to draw the legislator's attention to the following circumstance.

According to part 7 of Article 81 of the Criminal Code, deprivation of liberty shall not be imposed on minors who have committed a minor or medium-gravity crime not associated with causing death. Consequently, a literal and logical interpretation of this criminal law provision leads to the conclusion that deprivation of liberty may be imposed in the event of a medium-gravity crime that has resulted in the death of the victim. In this regard, the following question arises: is it permissible to impose the preventive measure of detention in custody on a person who has caused medium-gravity harm resulting in the death of the victim? For example, where there are grounds to believe that the person will abscond from the investigation and trial or has committed a crime more than once.

I believe that there should be no legal grounds preventing the selection of detention in custody as a preventive measure in such situations. At the same time, according to part 1 of Article 541 of the Criminal Procedure Code, the preventive measure of detention in custody shall not be applied to minor suspects or accused persons charged with committing a criminal misdemeanor or a minor or medium-gravity crime.

Whether there is a rational basis in my reasoning or not is a question I leave to the legislator.

Commentary to the Criminal Code of the Republic of Kazakhstan, 2021, 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 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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