Commentary on Article 83. Exemption of Minors from Criminal Liability and Punishment under the Criminal Code of the Republic of Kazakhstan

1. A minor who has committed a criminal misdemeanor or a minor crime, or who has committed a medium-gravity crime for the first time, may be exempted from criminal liability by a court if it is established that the minor can be rehabilitated without being held criminally liable. In this case, compulsory educational measures may be applied to the minor.

2. A minor convicted for the first time of committing a criminal misdemeanor or a minor or medium-gravity crime may be exempted from punishment by a court if it is determined that the minor can be rehabilitated through the application of compulsory educational measures.

3. A minor who has committed a grave crime for the first time, which is not associated with causing death or grievous bodily harm to a person, may be exempted from criminal liability by a court in the cases provided for in Part Two of Article 68 of this Code.

All types of exemption from criminal liability and punishment provided for by criminal law are applicable to minors who have committed a criminal offense. The commented article of the Criminal Code establishes an additional type of exemption from criminal liability and punishment that applies exclusively to minors. At the same time, exemption under Article 83 of the Criminal Code falls exclusively within the prerogative of the court and constitutes its right rather than its obligation.

In the commented article, the legislator determines not only the grounds for exempting minors from criminal liability but also the grounds for exempting minors from criminal punishment. At the same time, compulsory educational measures serve as an alternative in cases where a minor is exempted from criminal liability and punishment. Parts 1 and 3 of the commented article concern exemption from criminal liability, while Part 2 of the commented article concerns exemption from criminal punishment. Exemption from criminal liability and punishment requires the existence of the relevant conditions.

For a minor to be exempted from criminal liability under Part 1 of Article 83 of the Criminal Code, the following conditions must be met: 1) the minor has committed a criminal misdemeanor; 2) the minor has committed a minor crime; 3) the minor has committed a medium-gravity crime for the first time; 4) it has been established that the minor can be rehabilitated without being held criminally liable; 5) exemption from criminal liability is carried out exclusively by a court.

It should be borne in mind that exemption from criminal liability for committing a criminal misdemeanor or minor crimes is permitted regardless of whether such criminal offenses have been committed repeatedly or not. For the purpose of exempting minors, it does not matter whether they were previously exempted for these offenses or were convicted and their criminal records were expunged in accordance with the procedure established by law. Exemption cannot be ruled out even if the minor has a criminal record for previously committing a criminal misdemeanor or a minor crime. Naturally, this must be considered in light of the circumstances of the case, the nature and motive of the crime committed, the personality of the perpetrator, and so forth.

Unlike exemption for committing a criminal misdemeanor or minor crimes, when exempting a minor from criminal liability for committing a medium-gravity crime, it is required that the crime be committed for the first time.

According to Paragraph 4 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 21, 2001, “On Judicial Practice in the Application of Article 68 of the Criminal Code of the Republic of Kazakhstan,” a crime committed for the first time shall mean an act that a person actually commits for the first time, or an act committed not for the first time, provided that, for a previously committed crime, the person was exempted from criminal liability in accordance with the procedure established by law or was fully exempted from punishment, or the criminal record was expunged or removed (Article 79 of the Criminal Code).

A person who has committed two or more crimes (in cases of repeated offenses or an actual aggregate of crimes) cannot, as a whole, be recognized as a person who has committed a crime for the first time. At the same time, with regard to the first episode of the charge, the person should be considered to have committed the crime for the first time.

According to Part 3 of Article 83 of the Criminal Code, a minor who has committed a grave crime for the first time, which is not associated with causing death or grievous bodily harm to a person, may be exempted from criminal liability by a court in the cases provided for in Part 2 of Article 68 of the Criminal Code, which states: “Minors, pregnant women, women having young children, men raising young children on their own, women aged fifty-eight years and older, and men aged sixty-three years and older who have committed a grave crime for the first time, which is not associated with causing death or grievous bodily harm to a person, may be exempted from criminal liability if they have reconciled with the victim or the applicant, including through mediation, and have made reparation for the harm caused.”

When exempted from criminal liability, compulsory educational measures are applied to the minor.

Thus, the provisions of Part 2 of Article 68 of the Criminal Code apply to persons who have committed a grave crime not associated with causing death or grievous bodily harm to a person, provided that the following grounds exist cumulatively:

a grave crime not associated with causing death or grievous bodily harm to a person was committed for the first time by a minor, a pregnant woman, a woman having young children, a man raising young children on his own, a woman aged fifty-eight years or older, or a man aged sixty-three years or older;

the act committed by the guilty person falls within the category of grave crimes not associated with causing death or grievous bodily harm to a person;

reconciliation has taken place between the person who committed the crime and the victim or the applicant, including through mediation;

the person who committed the crime has made reparation for the harm caused to the victim or the applicant as a result of the crime.

If at least one of the listed grounds is absent, the application of Part 2 of Article 68 of the Criminal Code is inadmissible.

Consequently, the conditions for exempting minors from criminal liability under Part 3 of the commented article are as follows:

a grave crime committed for the first time;

the grave crime committed is not associated with causing death or grievous bodily harm;

reconciliation with the victim or the applicant, including through mediation;

making reparation for the harm caused. In this regard, it does not matter whether the minor personally made reparation for the harm caused or whether, due to the minor's lack of financial resources, the harm was made good by the parents, brothers, sisters, close relatives, and so forth;

exemption is carried out exclusively by a court.

The harm to be made good by a person who has committed a criminal offense should include any harm caused to the victim or the applicant as a result of the criminal offense: moral, physical, and property damage. In this regard, not only direct but also indirect losses related to the criminal offense must be taken into account, including expenses incurred in connection with participation in the pre-trial investigation and court proceedings, including expenses for legal representation.

Making reparation for harm may take the form of restoring damaged property, returning stolen property or providing equivalent property, paying monetary compensation, purchasing medicines, providing health resort vouchers, apologizing to the victim or the applicant, and other forms not prohibited by law.

Compensation for the harm caused must be sufficient from the perspective of the victim or the applicant, rather than the person who committed the criminal offense. Criminal prosecution authorities and the court have the right to modify the claims of the victim or the applicant regarding the extent of the harm to be made good.

When considering a civil claim in criminal proceedings, courts should proceed from the fact that, pursuant to Article 926 of the Civil Code, minors aged 14 to 18 independently bear liability for the harm caused (including moral damage) on general grounds.

In cases where a minor aged 14 to 18 has no income or other property sufficient to compensate for the harm, the latter must be compensated in full or to the extent of the shortfall by the minor's legal representatives, unless they prove that the harm did not arise through their fault.

The obligations of the legal representative and the relevant institution to compensate for harm caused by a minor terminate when the minor reaches the age of eighteen, or in cases where, before reaching the age of majority, the minor acquires income or other property sufficient to compensate for the harm, or acquires legal capacity before reaching the age of majority (Paragraph 2 of Article 17 and Article 22-1 of the Civil Code).

If the damage results from joint criminal offenses committed by several persons, the convicted persons, both adults and minors, provided they have sufficient earnings and property, bear joint and several material liability in accordance with Article 932 of the Civil Code. Pursuant to Paragraph 2 of this Article of the Civil Code, the court may, upon the victim's application and in the victim's interests, impose several liability on the persons who jointly caused the harm.

Courts must not allow cases in which criminal punishment is imposed on minors who have committed criminal offenses that do not pose a significant public danger, if their rehabilitation and re-education can be achieved through the application of compulsory educational measures provided for in Article 84 of the Criminal Code.

By virtue of Part 2 of Article 83 of the Criminal Code, exemption from punishment with the application of compulsory educational measures is possible if the following two grounds exist cumulatively:

the person has been convicted for the first time of committing a criminal misdemeanor or a minor or medium-gravity crime;

the person's rehabilitation can be achieved through the application of compulsory educational measures.

When deciding whether to exempt a minor from criminal liability and punishment and whether it is appropriate to apply compulsory educational measures, it is necessary to proceed from an analysis of the nature and degree of public danger of the criminal offense committed (the gravity of the crime committed), an assessment of the personality of the perpetrator, the conditions of upbringing, family circumstances, and other circumstances that provide the court with grounds to be confident that the imposition of criminal punishment is not necessary to rehabilitate the perpetrator. Thus, the court's conviction is formed on the basis of a comprehensive analysis of both the minor's actions and the minor's personality, the circumstances of the case, the level of legal awareness, moral attitudes, relationships with parents and others, and so forth.

A decision to apply compulsory educational measures may be made only by a court and only when the case is considered at the main court hearing, upon delivery of a guilty verdict. Compulsory educational measures in the form of placing the minor under the supervision of parents or persons replacing them, or a specialized state body, as well as in the form of restricting leisure activities and establishing special requirements for behavior, may be applied to a minor for the period considered necessary by the court for the minor's rehabilitation or re-education, or until the minor reaches the age of eighteen, which must be specified in the judgment.

Paragraph 16 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” states that the law does not provide for the possibility of replacing educational measures with criminal punishment under any circumstances, including where a minor evades such measures or commits a new criminal offense during the period in which compulsory educational measures are being applied.

Minors to whom educational measures have been applied are recognized as having no criminal record in accordance with Part 2 of Article 79 of the Criminal Code.

In the cases provided for in Article 83 of the Criminal Code, the court, in accordance with Article 545 of the Criminal Procedure Code, delivers a guilty verdict exempting the minor from criminal liability and applying to the minor the compulsory educational measures specified in Article 84 of the Criminal Code for the period indicated in Article 85 of the Criminal Code.

Exemption of a minor from criminal liability with the application of compulsory educational measures may be effected by means of a court ruling in the cases provided for in Parts 1 and 3 of Article 83 of the Criminal Code.

If a minor is exempted from criminal liability on the basis of Part 1 of Article 68 of the Criminal Code, compulsory educational measures are not applied to that minor.

A criminal case concerning a person who committed a criminal offense while a minor, regardless of whether that person reaches the age of majority during the court proceedings, falls within the jurisdiction of a specialized juvenile court (with the exception of cases falling within the jurisdiction of the specialized interdistrict criminal court, the specialized interdistrict military criminal court, and the military court of the garrison). In this case, proceedings in court against defendants who have reached the age of majority are conducted, in accordance with the relevant article, under the general rules of judicial proceedings rather than under the provisions of Chapter 56 of the Criminal Procedure Code.

In conclusion of the examination of the commented article, I would like to draw the legislator's attention to certain contradictions existing between Article 83 of the Criminal Code and Article 545 of the Criminal Procedure Code. Thus, a minor who has committed a grave crime for the first time, which is not associated with causing death or grievous bodily harm to a person, may be exempted from criminal liability if the minor has reconciled with the victim or the applicant, including through mediation, and has made reparation for the harm caused. When exempted from criminal liability, compulsory educational measures are applied to the minor. However, according to Article 545 of the Criminal Procedure Code, where a minor has committed a criminal misdemeanor, a minor or medium-gravity crime, or a grave crime, if the court finds that the minor can be rehabilitated without the application of criminal punishment, the court has the right to deliver a guilty verdict, exempt the minor defendant from punishment, and apply to the minor the compulsory educational measures provided for in Article 84 of the Criminal Code. A comparison of Part 3 of Article 83 of the Criminal Code and Article 545 of the Criminal Procedure Code shows that, in order to be exempted from criminal liability under Part 3 of Article 83 of the Criminal Code, the grave crime, which is not associated with causing death or grievous bodily harm, must have been committed by the minor for the first time, whereas this is not required for exemption from punishment for committing a grave crime under Article 545 of the Criminal Procedure Code. Moreover, under Article 545 of the Criminal Procedure Code, the absence of death is not established as a condition for exemption from punishment. This is the first point.

Secondly, pursuant to Part 1 of Article 68 of the Criminal Code, a person who has committed a criminal misdemeanor or a minor or medium-gravity crime not associated with causing death is subject to exemption from criminal liability if that person has reconciled with the victim or the applicant, including through mediation, and has made reparation for the harm caused, regardless of the court's position. The requirements of Part 1 of Article 68 of the Criminal Code undoubtedly extend to minors as well. These requirements of Part 1 of Article 68 of the Criminal Code must be taken into account in Article 545 of the Criminal Procedure Code.

Thirdly, according to Part 2 of Article 83 of the Criminal Code, a minor convicted for the first time of committing a criminal misdemeanor or a minor or medium-gravity crime may be exempted from punishment by a court if it is determined that the minor's rehabilitation can be achieved through the application of compulsory educational measures. However, according to Article 545 of the Criminal Procedure Code, committing a medium-gravity crime for the first time is not required as a condition for exempting a minor from punishment for such a crime. The legislator has something to consider.

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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