Commentary on Article 82. Imposition of Punishment on a Minor under the Criminal Code of the Republic of Kazakhstan
1. When imposing punishment on a minor, in addition to the circumstances provided for in Article 52 of this Code, the conditions of the minor’s life and upbringing, the level of mental development, other personal characteristics, as well as the influence exerted on the minor by older persons, shall be taken into account.
2. Minority of age, as a mitigating circumstance, shall be taken into account in conjunction with other mitigating and aggravating circumstances.
When considering criminal cases involving minors, courts must, in addition to complying with the criminal and criminal procedure legislation of the Republic of Kazakhstan, take into account the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the Convention on the Rights of the Child (1989), the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules, 1985), and the United Nations Guidelines for the Prevention of Juvenile Delinquency (the Riyadh Guidelines, 1990).
One of the most important principles of criminal legislation is the principle of individualization of punishment, which is expressed in the requirement of the law to take into account, when imposing punishment, the individual characteristics of the crime committed and the personality of the guilty person.
The general principles of sentencing set out in Article 52 of the Criminal Code also apply to minors. However, there are a number of specific features relating both to the personality of a minor and to the legal assessment of their conduct when committing a crime, as well as the circumstances that led a particular person to commit a crime.
Thus, pursuant to Article 531 of the Criminal Procedure Code, during pre-trial investigation and judicial proceedings, in addition to the circumstances subject to proof as provided for in Article 113 of the Criminal Procedure Code (Article 113 of the Criminal Procedure Code specifies 9 such circumstances), the following circumstances must also be established in cases involving minors:
- the age of the minor (day, month and year of birth);
- the living and upbringing conditions of the minor;
- the degree of intellectual, volitional and mental development, character and temperament traits, needs and interests;
- the influence of adults and other minors on the minor.
The circumstances listed above are directly related to the age-related characteristics of this category of persons. The age-related psychological characteristics of minors include the desire to imitate adults, youthful maximalism, vague perceptions of the boundary between good and evil, a false sense of comradeship, the dominance of excitation processes over inhibition processes, and so on. These characteristics are обусловлены by the psychophysiological condition of the adolescent’s developing body.
Persons under the age of eighteen have not yet become sufficiently socialized to fully understand the social significance of their unlawful conduct. A minor reacts more sensitively than an adult to external influences, and their psyche is easily vulnerable. When establishing the living and upbringing conditions, it is necessary to clarify circumstances relating to whether the adolescent has parents, whether the parents or persons replacing them fulfil their responsibilities for the adolescent’s upbringing, the adolescent’s domestic environment, and other relevant circumstances.
Judicial practice, as well as research in the field of juvenile delinquency, shows that one of the criminogenic factors is living in dysfunctional families (single-parent families and families in which the behaviour of minors is supervised only by a grandmother or grandfather). In such families, minors are, for the most part, left to their own devices, drop out of school, engage in vagrancy and commit criminal offences. They often fall under the influence of adult criminals.
It may be said that the state policy aimed at combating homelessness and juvenile delinquency is not being fully implemented. It is difficult to speak of the effective implementation by the relevant state authorities of the Law of the Republic of Kazakhstan dated 9 July 2004, “On the Prevention of Offences among Minors and the Prevention of Child Neglect and Homelessness,” as well as the Law of the Republic of Kazakhstan dated 29 April 2010, “On the Prevention of Offences.” This, in turn, leads to an increase in the number of neglected children. Therefore, a detailed analysis of the living and upbringing conditions of a minor is also necessary to resolve the issue of the liability of persons responsible for raising the adolescent.
Pursuant to paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Anti-Social Acts,” when imposing punishment on minors, courts are obliged, in addition to the circumstances specified in Part 3 of Article 52 of the Criminal Code, to take into account their living and upbringing conditions (an unfavourable family environment, rude and sometimes cruel treatment of minors by parents, close relatives, etc.), the level of mental development, personal characteristics (the presence of a mental disorder, emotional instability, irritability, etc.), the motives for committing criminal offences (childish mischief, doing something “for the sake of the group,” envy, vindictiveness, etc.), and the influence of older persons on minors.
When a criminal offence is committed by a minor, it is necessary to determine the extent to which the adolescent understood the value of the object against which the offence was directed. Minors are not always capable of fully and correctly understanding the diverse and complex aspects and elements of social relations protected by law; according to their perception, they often encroach upon an object that is less valuable than its actual significance would suggest.
With regard to the various forms of guilt, it should be borne in mind that even in intentional criminal offences, intent may differ in terms of the degree to which the guilty person is aware of their actions, the degree to which they foresee the consequences, and the time at which the intent arose (direct and indirect intent, premeditated and suddenly arising intent, etc.). In crimes committed by minors, intent is, in most cases, less developed in content than that of adults.
When determining the nature and degree of public danger of a criminal offence committed by a minor, the motive and purpose are of great importance. At the same time, when imposing punishment on minors, it should be borne in mind that even in cases where base motives are a mandatory element of the act, the dominant motives behind an adolescent’s behaviour are often not base motives but other considerations.
Thus, theft, robbery and armed attacks committed by adolescents are sometimes motivated by acquisitive intentions combined with motives such as mischief, the desire to assert themselves within a group, and the desire to occupy their free time. Hooligan acts and rape are sometimes associated with the desire not to fall behind their peers, to appear adult, brave and independent, etc.
Under subparagraph 2) of paragraph 1 of Article 53 of the Criminal Code, the fact that the offender is a minor constitutes a circumstance mitigating criminal liability and punishment. However, this circumstance should not be given any exceptional or decisive significance. Courts must not interpret the offender’s minority of age in an unequivocal manner as a mitigating circumstance. Pursuant to Part 2 of the commented article, it is recognized as such only in conjunction with other mitigating and aggravating circumstances.
The legal nature of minority of age as a circumstance mitigating punishment lies both in the fact that a minor often does not understand the social significance of their actions and their possible consequences, nor the consequences that may personally arise for them as a result of committing a crime, and in the fact that, due to age-related characteristics, minors are, on the one hand, more sensitive than adults to the deprivations and restrictions associated with punishment, while, on the other hand, adolescents are considerably more susceptible to corrective influence. Therefore, in most cases, applying severe punitive measures to them is inappropriate.
With regard to taking mitigating and aggravating circumstances into account, it should first of all be borne in mind that, when assessing a minor’s criminal offence under criminal law, each mitigating circumstance reduces the punishment imposed on the guilty person to a greater extent, while each aggravating circumstance increases the punishment to a lesser extent than would be the case under similar conditions in cases involving adults. This is explained by the fact that in every case involving a minor, any mitigating circumstance already constitutes a combination of at least two mitigating factors, the second of which is minority of age.
In criminal offences committed by minors, the following mitigating circumstances occur more frequently than others: sincere repentance and active assistance in the detection and investigation of criminal offences; commission of a criminal offence as a result of a combination of personal, family or other circumstances; commission of a crime as a result of physical or mental coercion or due to material, official or other dependence. The latter occurs when a minor is involved in criminal activity by their parents or persons replacing them, or by their immediate supervisors at work. As in cases involving adults, the court has the right to recognize as mitigating circumstances those not specified in the law (Part 2 of Article 53 of the Criminal Code). Judgments in cases involving minors often refer to such mitigating circumstances as the presence of adult instigators, commission of a criminal offence under the influence of other persons, a secondary role in the criminal offence committed, and so forth.
When individualizing punishment for minors, particular caution should be exercised in assessing circumstances aggravating punishment. Thus, the commission of a criminal offence by adolescents as part of a group constitutes an aggravating circumstance. It is well known that criminal offences committed jointly are one of the ways in which the desire for communication and submission to group behavioural norms, characteristic of adolescents, is manifested. However, the majority of groups of juvenile offenders either do not have clear signs of internal organization or are formed for the purpose of committing a single criminal offence. The participation of a minor in a crime committed by a group of persons upon prior conspiracy or by a criminal group should not be regarded as an aggravating circumstance where the adolescent was involved in the crime by adults and played an insignificant role in its commission.
Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan “On Certain Issues of Sentencing” states that, pursuant to subparagraph 12) of paragraph 1 of Article 54 of the Criminal Code, the court may, depending on the nature of the criminal offence, refuse to recognize the commission of a crime while intoxicated as a circumstance aggravating liability and punishment. When deciding this issue, courts must take into account whether the commission of the criminal act was, by its nature, connected with the offender’s intoxication, as well as the circumstances under which the person came to be in such a state. In particular, the state of alcohol intoxication of a minor at the time of committing a criminal offence cannot be taken into account as a circumstance aggravating liability and punishment if it was associated with the minor being induced to consume alcoholic beverages, narcotic drugs or other intoxicating substances by an adult accomplice to the criminal offence.
Poor living and upbringing conditions of an adolescent, neglect, as well as the influence of adults who involved the adolescent in committing a crime, can only mitigate their liability. Thus, in the case of K., who was found guilty of theft committed upon prior conspiracy with other persons, the court, in justifying the imposition of imprisonment, stated in its judgment that the family did not provide conditions for K.’s upbringing: his mother was ill, had a Group II disability, had two other minor children besides K., and paid no attention to K.’s upbringing; his father was serving a sentence of imprisonment. K. had fallen under the influence of adults who had previously served prison sentences and had committed the crime together with them. If left at liberty, he might again find himself in the same environment and commit another crime. The cassation instance, having pointed out to the court in a separate ruling that it had incorrectly assessed a mitigating circumstance, applied a compulsory educational measure to K. instead of punishment.
Alongside the imposition of unjustifiably severe punishments on minors, courts also impose unjustifiably lenient punishments that do not correspond to the gravity of the crimes committed and the personalities of the offenders. As a result, minors develop a sense of impunity for the crimes they have committed.
Circumstances characterizing the living conditions, upbringing and circumstances surrounding the commission of a crime by a minor must be examined comprehensively and in their entirety; otherwise, erroneous conclusions on this issue may be reached. Based on information concerning the living and domestic conditions of a minor, placement under the supervision of parents, guardians or other trustworthy persons may be applied as a preventive measure, provided that they submit a written petition.
A fair punishment in respect of a minor is one that ensures their correction in the best possible way. At the same time, the punishment must not be excessively severe.
The Convention on the Rights of the Child recommends the adoption of measures that make it possible to avoid bringing children before a court. It requires that minors accused or found guilty of committing a crime be treated with due regard to “the child’s age and the desirability of promoting the child’s reintegration and the child’s assuming a constructive role in society.”
Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) provides for the use of a modern approach to determining a child’s capacity to withstand the moral and psychological difficulties associated with criminal responsibility, that is, to determining whether a minor may be held liable for an offence committed by them, taking into account their individual characteristics.
When rendering a judicial decision in respect of a minor, it should be taken into account that certain contradictions may arise when imposing punishment between rehabilitation and retribution according to merit; assistance and restraint and punishment; general deterrence and individual punishment.
The Beijing Rules should be regarded as principles intended to promote the protection of the rights of juvenile offenders. Thus, in accordance with subparagraph “b” of Rule 17.1, alternatives to imprisonment should be applied as widely as possible in respect of minors, taking into account the need to meet their specific needs. The probation system should be applied as widely as possible through the imposition of suspended sentences, postponement of the execution of sentences and other types of decisions. Imprisonment of a minor should be avoided unless there is no other appropriate measure capable of ensuring public safety.
Rule 18.1 lists certain important measures of influence and sanctions that are successfully applied in various legal systems. Such measures may be implemented in combination with one another and include:
- an order for guardianship, guidance and supervision;
- probation;
- engagement in community service;
- monetary forms of punishment, such as a fine.
Another set of rules is contained in the United Nations Rules for the Protection of Juveniles Deprived of Their Liberty (United Nations General Assembly Resolution 45/113 of 14 December 1990). The purpose of these Rules is to establish the minimum standards adopted by the United Nations for the protection of juveniles deprived of their liberty in any form, in accordance with human rights and fundamental freedoms, as well as to counteract the adverse effects of all forms of imprisonment and promote the physical and mental development of juveniles. The Rules for the Protection of Juveniles Deprived of Their Liberty pay considerable attention to treatment, regimes, education and rehabilitation, both from the perspective of protecting rights and from the perspective of removing the stigma attached to young people in the eyes of society.
The Beijing Rules and the Rules for the Protection of Juveniles Deprived of Their Liberty make it clear that, where deprivation of liberty is applied to minors, the punitive element must be reduced to the minimum extent possible.
It is important to note that, pursuant to subparagraph 2) of paragraph 1 of Article 67 and subparagraph 3) of paragraph 2 of Article 542 of the Criminal Procedure Code, the participation of defence counsel in cases involving criminal offences committed by minors is mandatory at all stages of proceedings, starting from the moment a petition is filed or the minor is taken into custody, or from the moment of the first interrogation as a suspect or accused person. The body conducting the criminal proceedings, as required by the Supreme Court of the Republic of Kazakhstan in its Regulatory Resolution “On Judicial Practice in Cases Involving Criminal Offences Committed by Minors and Their Involvement in the Commission of Criminal Offences and Other Anti-Social Acts,” must not accept a minor’s refusal of defence counsel, regardless of the reasons for such refusal (paragraph 5 of the Regulatory Resolution of the Supreme Court).
Failure to comply with the legal requirements concerning the mandatory participation of defence counsel in court hearings in cases involving minors must, pursuant to subparagraph 4) of paragraph 3 of Article 436 of the Criminal Procedure Code, be regarded as a substantial violation of criminal procedure law resulting in the annulment of the judgment.
Proceedings in a case involving a minor will be incomplete if the case materials do not contain information on the minor’s general development and mental health, established through investigative actions (interrogations, examinations, expert assessments, specialist opinions, etc.) and the request for necessary medical documents.
Thus, if a minor has reached 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 offence, to fully understand the actual nature and social danger of their actions (inaction) or to control them, they shall not be subject to criminal liability (Part 3 of Article 15 of the Criminal Code).
The degree of intellectual development (level of thinking and mental capacity) of a minor is generally determined by their range of interests, the extent of their knowledge and even their genetic predispositions.
For the practical assessment of the level of intellectual development and its impairments, clinical psychology generally distinguishes between:
1. the inventory of intelligence — acquired knowledge, skills, abilities, etc.;
prerequisites of intelligence — memory, attention, thinking, speech, volitional processes, motivation, etc.;
intelligence itself — concepts, judgments, inferences, reasoning, opinions, the ability to generalize and abstract, the ability to draw conclusions, etc.
The Criminal Code of the Republic of Kazakhstan establishes liability for involving a minor in the commission of criminal offences (Article 132 of the Criminal Code), involving a minor in the commission of anti-social acts (Article 133 of the Criminal Code), and involving a minor in prostitution (Article 134 of the Criminal Code). Furthermore, involving persons who have not reached the age of criminal responsibility in the commission of a criminal offence constitutes an aggravating circumstance of criminal liability (subparagraph 5) of paragraph 1 of Article 54 of the Criminal Code). In view of this, the subject matter of proof in cases involving minors must also include determining who is behind the minor’s criminal offence, who may have organized it, who induced the minor to commit the criminal offence, what role the parents played, which other minors participated in the criminal offence, what influence they had on the person who committed it, as well as their role in the commission of the criminal offence, and so forth.
Successful correction of a juvenile offender presupposes the existence of a set of social and economic conditions necessary for their normal integration into society. Among these conditions, the most important include the possibility for a minor to communicate in a socially healthy environment, the absence of harmful influences, the opportunity for the minor to obtain a profession and engage in lawful activities that satisfy their material and spiritual needs.
Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured Worker 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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