Commentary on Article 84. Compulsory Measures of Educational Influence of the Criminal Code of the Republic of Kazakhstan
1. The following compulsory measures of educational influence may be imposed on a minor by a court:
1) a warning;
2) placement under the supervision of parents or persons replacing them, or a specialized state body;
3) imposition of an obligation to make amends for the damage caused;
4) restriction of leisure time and establishment of special requirements for the conduct of the minor;
5) placement in an educational organization with a special detention regime;
6) imposition of an obligation to apologize to the victim;
7) establishment of probationary supervision.
2. Several compulsory measures of educational influence may be imposed on a minor simultaneously.
As a legal consequence of a committed criminal offense, criminal liability is implemented through the imposition of criminal punishment or other measures of criminal-law influence on the guilty person, which is expressly established in Part 2 of Article 2 of the Criminal Code.
According to Article 545 of the Criminal Procedure Code, if, in a case involving a criminal misdemeanor or a minor, medium-gravity or grave crime, it is determined that the minor who committed this criminal offense can be reformed without applying criminal punishment measures, the court shall have the right, upon rendering a conviction, to release the minor defendant from punishment and apply to him or her the compulsory measures of educational influence provided for in Article 84 of the Criminal Code. A copy of the judgment shall be sent to a specialized state body.
Compulsory measures of educational influence constitute a type of state response measures to the unlawful conduct of minors. By their legal nature, compulsory measures do not constitute criminal liability and are not punishment, but they exist and are implemented within the framework of criminal-law relations.
Proceeding from the principles of justice, humanism and economy of criminal repression, the legislator established compulsory measures of educational influence in Article 84 of the Criminal Code.
This position concerning the economy of criminal repression is recognized by the entire international community. In particular, the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the 1985 Beijing Rules) recommend paying sufficient attention to the implementation of positive measures that envisage the full mobilization of all possible resources, including the family, volunteers and other groups of society, as well as schools and other public institutions, with the aim of promoting the well-being of adolescents in order to reduce the need for intervention by law and to ensure effective, fair and humane treatment of adolescents in conflict with the law.
Compulsory measures of educational influence constitute one of the grounds for releasing minors from criminal liability and are a specific ground inherent exclusively to the category of persons under consideration.
Serving as an alternative to criminal liability and punishment for committing a criminal offense, compulsory measures of educational influence, in terms of their content, represent the state's response to the violation of certain prohibitions. It is precisely these measures, just like criminal punishment, that constitute the material expression and implementation of criminal liability for the criminal offense committed.
Consequently, like criminal punishment, compulsory measures of educational influence are measures of state coercion imposed by a specially authorized body — the court.
The compulsory nature of educational influence measures is determined by the fact that they are imposed on minors regardless of their wishes, the wishes of their parents, legal representatives, etc. Although compulsory in nature, these measures are, at the same time, educational in terms of their content. This provision follows from the possibility of cancelling the imposed educational influence measures under certain conditions in accordance with Part 11 of Article 85 of the Criminal Code. The implementation of coercion as a measure of educational influence involves imposing certain requirements on the minor, establishing supervision over his or her conduct and restricting leisure time, as well as imposing obligations to make amends for the damage caused.
Being measures of state coercion, just like criminal punishment, compulsory measures of educational influence entail certain deprivations or restrictions of the rights and freedoms of the person to whom they are applied. This provision follows from the content of Part 2 of Article 2 and Article 85 of the Criminal Code.
However, criminal punishment and compulsory measures of educational influence, being measures of a criminal-law nature, differ in their legal characteristics:
criminal punishment is characterized by a broader range of restrictions on the rights and freedoms of a convicted person. These restrictions are more severe in terms of their punitive nature and are applied to a greater extent.
Punishment imposed on guilty persons entails a criminal record, which begins on the day the court's conviction enters into legal force and ends, pursuant to Article 79 of the Criminal Code, upon the expiry or removal of the criminal record. The application of compulsory measures of educational influence does not constitute punishment and, consequently, does not entail a criminal record;
criminal punishment is imposed only for a criminal offense committed by a minor, and the minor's criminal liability for the act committed is realized through such punishment, whereas compulsory measures of educational influence, although also imposed in connection with the commission of a criminal offense by the minor, necessarily involve releasing him or her from criminal liability or punishment.
Compulsory measures of educational influence are legal in nature, which is determined by the following characteristics:
— these measures are provided for by the provisions of criminal law;
— they are applied only for criminal offenses committed by minors;
— when they are applied, the minor is released from criminal liability or criminal punishment;
the procedure for applying compulsory measures of educational influence is regulated by the provisions of criminal procedural law;
the imposition of these measures is carried out by a specially authorized state body — the court.
Various types of compulsory measures of an educational nature have been introduced into the Criminal Code, enabling the court to select the most appropriate one for a particular minor. The system of compulsory measures of educational influence provided for by law establishes the basis for releasing minors from criminal liability and punishment through the application of compulsory measures of educational influence. In accordance with the current criminal legislation, the grounds for applying compulsory measures of educational influence when releasing a minor from criminal liability are the commission by the minor of a criminal misdemeanor or a crime of minor gravity, or, for the first time, a crime of medium gravity, as well as the commission, for the first time, of a grave crime not associated with causing death or grievous bodily harm to a person,
in the event of reconciliation with the victim or applicant, including through mediation (Part 2 of Article 68 of the Criminal Code); the possibility of achieving rehabilitation through the application of compulsory measures of educational influence.
When releasing a minor from punishment, the ground for applying educational influence is the minor's conviction for committing a criminal misdemeanor or a crime of minor or medium gravity for the first time.
Among the significant innovations of this Article is the introduction of such a measure as the establishment of probationary supervision. Thus, in accordance with Part 2 of Article 44 of the Criminal Code, probationary supervision constitutes the essence of the criminal punishment in the form of restriction of liberty or, pursuant to Article 63 of the Criminal Code, forms an integral part of conditional sentencing, which makes it possible to strengthen the correction of post-criminal conduct under the supervision of an authorized state body.
According to Part 2 of Article 44 of the Criminal Code, probationary supervision includes the performance by the convicted person of the following obligations: not to change their permanent place of residence, place of work or place of study without notifying the authorized state body exercising supervision over the conduct of the convicted person; not to visit certain places; to undergo a course of treatment for alcoholism, drug addiction, substance abuse and sexually transmitted diseases; to provide material support to the family; and to fulfil other obligations that contribute to the rehabilitation of the convicted person and the prevention of new criminal offenses by that person.
When conditional sentencing is imposed, the court establishes probationary supervision, in accordance with the rules set out in Part 2 of Article 44 of the Criminal Code, for the entire period of the imposed deprivation of liberty, and, in the case of minors, for a period ranging from six months to one year (Part 3 of Article 63 of the Criminal Code).
The Article under commentary provides an exhaustive list of the types of compulsory measures of educational influence. The court may not impose any other measures not specified in this Article. However, since compulsory measures of educational influence are not divided into principal and additional measures, several compulsory measures of educational influence may be imposed on a minor simultaneously (Part 2 of Article 84 of the Criminal Code).
It is inadvisable to apply these measures to a person who has not admitted guilt in committing a criminal offense; at the same time, it should be taken into account that an admission of guilt, like any other evidence, must be assessed critically. A minor may have compelling reasons for making a false confession (for example, fear of criminal punishment or fear of the actual offender).
The possibility of rehabilitating a minor may be established on the basis of the nature and degree of danger of the particular crime, the personality of the guilty person, the conditions of his or her life and upbringing, and other circumstances of the case.
The compulsory measures of educational influence provided for in Article 84 of the Criminal Code have a dual legal nature. They may serve as a form of release from criminal liability and as a form of release from punishment. The similarities between the release of minors from criminal liability and their release from punishment with the application of compulsory measures of educational influence are as follows:
the types of compulsory measures of educational influence and their content are identical;
compulsory measures of educational influence are applied to minors who have committed criminal offenses both when they are released from criminal liability and when they are released from punishment;
compulsory measures of educational influence are applied when the objectives of rehabilitating the minor can be achieved through their use;
compulsory measures of educational influence are applied exclusively by the court.
The differences between them are as follows:
in one case, compulsory measures of educational influence replace criminal liability and are applied in its place, whereas in the other case, they involve the implementation of criminal liability in the form of release from punishment with the application of compulsory measures of educational influence,
the release of a minor from criminal liability is carried out on the basis of a court ruling issued upon the motion of individual officials (the prosecutor or investigator) or by the court on its own initiative.
The release of a minor from punishment with the application of compulsory measures of educational influence is the exclusive prerogative of the court.
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.
Constitution Law Code Regulatory Decree Order Decision Resolution Advocate Almaty Lawyer Legal Services Legal Consultation Civil Criminal Administrative cases and disputes Defense Arbitration Legal Company of Kazakhstan Law Office Court Cases Declaration Decree Order Resolution Decision Report Conclusion Application Conclusion Convention Contract Memorandum Methodology Norms Note Rules Program Charter Charter Article Commentary Rules Messages
