Commentary on Article 85. Content and Terms of Application of Compulsory Measures of Educational Influence of the Criminal Code of the Republic of Kazakhstan

A warning consists of explaining to a minor the harm caused by his or her act and the consequences of repeated commission of offences provided for by this Code.

Placement under supervision consists of imposing on parents or persons replacing them, or on a specialized state body, the duties of exercising educational influence over the minor and monitoring his or her conduct.

The obligation to make reparation for the harm caused shall be imposed taking into account the minor’s financial situation and the availability of relevant work skills.

Restriction of leisure activities and the establishment of special requirements for the conduct of a minor may include a prohibition on visiting certain places, using certain forms of leisure activities, including those associated with operating a motor vehicle, restricting the minor’s presence outside the home after a certain time of day, and travelling to other localities without the permission of a specialized state body. The minor may also be required to return to an educational institution, continue or complete his or her studies, or obtain employment with the assistance of a specialized state body. This list is not exhaustive.

Placement in an educational institution with a special regime of confinement for a period of six months to two years may be imposed by a court on a minor who has committed an intentional crime of medium gravity or a serious crime. Stay in the aforementioned institutions may be terminated early in connection with the person attaining the age of majority, as well as where, on the basis of an opinion issued by a specialized state body responsible for rehabilitation, the court concludes that the minor no longer requires the application of this measure for his or her rehabilitation.

Extension of the period of stay in an educational institution with a special regime of confinement after expiry of the period provided for in Part Five of this Article shall be permitted only where it is necessary for the minor to complete general or vocational education, but not beyond the date on which the minor attains the age of majority.

The procedure and conditions governing the stay of minors in educational institutions with a special regime of confinement shall be determined by the laws of the Republic of Kazakhstan.

The minor shall personally apologize to the victim for the harm caused.

Probation supervision shall be established for a period of up to one year in accordance with the rules set out in Part Two of Article 44 of this Code.

The period of application of compulsory measures of educational influence provided for in subparagraphs 2) and 4) of Part One of Article 84 of this Code shall be established as follows: up to six months for the commission of a criminal misdemeanour; from six months to one year for the commission of a minor crime; from one to two years for the commission of a crime of medium gravity; and from two to three years for the commission of a serious crime.

In the event that a minor intentionally fails to comply with a compulsory measure of educational influence two or more times within one year, that measure shall be revoked by the court upon the submission of a specialized state body, and the materials shall be forwarded for the purpose of bringing the minor to criminal liability, provided that the limitation period for bringing the minor to criminal liability has not expired.

The Article under consideration discloses the content of each type of compulsory measure of educational influence. In this regard, it should be borne in mind that the low level of self-control characteristic of minors requires, alongside the selected educational influence measure, the adoption of other measures that would ensure external supervision over their conduct.

In accordance with Part 1 of Article 85 of the Criminal Code, a warning consists of explaining to a minor the harm caused by his or her act and the consequences of repeated commission of offences provided for by the Criminal Code.

It is very important that a warning should not be formal in nature. In terms of its educational impact, a warning should pursue the goal of helping a minor realize the unlawfulness of his or her conduct and, having drawn the proper conclusion from this, consciously observe the rules of social conduct and legal norms in the future. A warning has a purely psychological effect on a minor released from criminal liability or punishment. Moreover, it is one of the measures of influence, non-compliance with which cannot entail the revocation of educational influence measures, since a warning does not impose any obligations on the person released from liability. Therefore, a meaningful and sincere conversation between the judge and the convicted minor is the key to ensuring that the minor does not commit a new criminal offence.

The court is obliged to explain to the minor the harmful nature of his or her conduct, demonstrate what suffering has been caused to the victims, and explain the consequences of committing a new criminal offence. A warning must not give rise to a minor’s feeling of impunity for the criminal offence committed.

Placement under supervision, pursuant to Part 2 of the Article under consideration, consists of imposing on parents or persons replacing them, or on a specialized state body, the duties of exercising educational influence over the minor and monitoring his or her conduct. When this compulsory measure is applied, parents are restricted in the methods by which they may fulfil this duty; the parent’s obligation is specified, and he or she is instructed, for example, to ensure control over the child’s free time, not to allow the child to leave the home after a certain hour, and so forth. This measure serves as a kind of warning to parents and other persons about the possibility of their child (ward) being held liable, with the aim of encouraging them to engage in more active educational activities.

Where parents and other persons do not agree to accept the duty of supervision or are unable to properly fulfil this duty due to their state of health, financial situation, inability to exercise effective control over the adolescent, or other circumstances related to their moral qualities and negative attitude towards their duties of raising minors, preference shall be given to a specialized state body.

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” (paragraph 11), states that, based on the specific circumstances of the case and information concerning the living conditions and daily life of the minor, broader use should be made, as a preventive measure, of placing the minor under the supervision of parents, guardians, trustees and other persons worthy of trust, as well as an organization that performs functions for the protection of children's rights in accordance with the law and in which the minor is staying. However, it must be taken into account that placing a minor under the supervision of parents and other persons is possible only upon their written application.

If, due to the living and upbringing conditions of a minor accused, he or she cannot remain at the previous place of residence, then, in accordance with Article 540 of the Criminal Procedure Code, at the discretion of the body conducting the criminal proceedings, the minor may be placed in an organization that performs functions for the protection of children's rights in accordance with the law, or placed under foster care.

According to Part 10 of the Article under consideration, such a measure as placement under supervision shall be established for the following periods.

Up to six months — for the commission of a criminal misdemeanour;

from six months to one year — for the commission of a minor crime;

from one to two years — for the commission of a crime of medium gravity;

from two to three years — for the commission of a serious crime.

Compulsory measures of educational influence in the form of placement under the supervision of parents or persons replacing them, or a specialized state body, may be applied to a minor for the period considered by the court necessary for his or her rehabilitation or re-education, or until he or she attains the age of eighteen, which must be specified in the judgment (paragraph 15 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002).

The obligation to make reparation for the harm caused shall be imposed, pursuant to Part 3 of the Article under consideration, taking into account the minor’s financial situation and work skills. Civil legislation provides for monetary compensation for non-pecuniary damage; however, in certain cases, with the consent of the victim, non-pecuniary damage may be remedied through an apology by the offender. When considering a civil claim in a criminal case, it should be borne in mind that, by virtue of Article 926 of the Civil Code, minors aged 14 to 18 independently bear liability for the harm caused (including non-pecuniary damage) on general grounds. For example, minor T., a student at the Karaganda Polytechnic College, called the police and reported that a bomb had been planted in the college building. During the investigation, it was established that T. had not prepared for his classes and, therefore, in order to disrupt them, had called the police. During the court proceedings, the court established that T. had committed a crime for the first time, had been positively characterized at his place of residence and study, was not registered with the juvenile affairs inspectorate, and also worked part-time after classes as an automobile mechanic in a private workshop. The court ruled to release T. from punishment and imposed educational influence measures on him, namely, “to issue a warning and impose the obligation to make reparation for the damage caused to the state organizations that had responded to the incident.”

Paragraph 28 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” states that where a minor aged 14 to 18 has no income or other property sufficient to compensate for the harm, the harm must be compensated in full or, to the extent of the shortfall, by his or her legal representatives, unless they prove that the harm did not arise through their fault.

The obligation of legal representatives and the relevant institution to compensate for harm caused by a minor shall terminate when the person who caused the harm attains the age of eighteen, or in cases where, before attaining the age of majority, the minor acquires income or other property sufficient to compensate for the harm, or acquires legal capacity before attaining the age of majority (Part 2 of Article 17 and Article 22-1 of the Civil Code).

If the damage resulted from joint criminal offences committed by several persons, the convicted persons, both adults and minors, shall bear joint and several material liability in accordance with Article 932 of the Civil Code, provided that they have sufficient earnings and property. By virtue of Article 932 of the Civil Code, the court may, at the request of the victim and in the victim’s interests, impose proportional liability on the persons who jointly caused the harm.

Citizens and organizations brought in as defendants in cases provided for by law for damage caused by convicted minors shall compensate for such damage in proportionate shares.

In accordance with Part 4 of the Article under consideration, restriction of leisure activities and the establishment of special requirements for the conduct of a minor may include a prohibition on visiting certain places, using certain forms of leisure activities, including those associated with operating a motor vehicle, restricting the minor’s presence outside the home after a certain time of day, and travelling to other localities without the permission of a specialized state body. The minor may also be required to return to a general education institution, continue or complete his or her studies, or obtain employment with the assistance of a specialized state body. The list of the specified restrictions on leisure activities is not exhaustive, that is, other requirements necessary for the minor’s rehabilitation may also be imposed on him or her. Such requirements must be appropriate, must not be cruel or cause harm to the minor, and their purpose must not be to humiliate the dignity of the minor.

Parts 5, 6 and 7 of the Article under consideration regulate general matters relating to such a compulsory measure of educational influence as placement in an educational institution with a special regime of confinement.

Part 5 of Article 85 of the Criminal Code provides for the possibility of placing a minor in educational institutions with a special regime of confinement for a period of six months to two years for committing an intentional crime of medium gravity or a serious crime. Consequently, minors who have committed a minor crime or an especially serious crime shall not be placed in educational institutions with a special regime of confinement.

Stay in these institutions may be terminated early:

in connection with the person attaining the age of majority;

where, on the basis of an opinion issued by a specialized state body responsible for rehabilitation, the court concludes that the minor no longer requires the application of this measure for his or her rehabilitation. This provision is also contained in the criminal procedure legislation of the Republic of Kazakhstan. Thus, Article 545-1 of the Criminal Procedure Code, introduced by the Law of the Republic of Kazakhstan dated April 1, 2019, is devoted to the early release of a minor from a compulsory measure of educational influence in the form of placement in an educational institution with a special regime of confinement. According to Part 1 of Article 545-1 of the Criminal Procedure Code, a minor may be released early from a compulsory measure of educational influence in the form of placement in an educational institution with a special regime of confinement in connection with attaining the age of majority, as well as where, on the basis of an opinion issued by the said institution, the court concludes that the minor no longer requires the application of this measure for his or her rehabilitation. According to Part 2 of Article 545-1 of the Criminal Procedure Code, the minor, his or her legal representative, and defence counsel shall have the right to submit a petition to the said institution for consideration of the issue of early termination of the minor’s stay in an educational institution with a special regime of confinement if, in their opinion, the minor no longer requires the application of this measure for his or her rehabilitation.

Extension of the period of stay in an educational institution with a special regime of confinement after expiry of the period provided for in Part 5 of the Article under consideration shall be permitted only where it is necessary for the minor to complete general or vocational education, but not beyond the date on which the minor attains the age of majority (Part 6 of Article 85 of the Criminal Code).

The procedure and conditions governing the stay of minors in educational institutions with a special regime of confinement shall be determined by the laws of the Republic of Kazakhstan, pursuant to Part 7 of the Article under consideration.

According to Paragraph 1 of Article 14 of the Law of the Republic of Kazakhstan dated July 9, 2004, “On the Prevention of Offences among Minors and the Prevention of Child Neglect and Homelessness,” educational institutions with a special regime of confinement are educational or medical-educational institutions established for the purpose of ensuring special conditions for the upbringing, education and social rehabilitation of minors.

Paragraph 2 of Article 14 of the said Law states that minors aged eleven to eighteen who require special conditions for upbringing and education and a special pedagogical approach shall be placed in educational institutions with a special regime of confinement:

those who have committed especially serious crimes or two or more socially dangerous acts in respect of whom the pre-trial investigation was terminated due to their not having attained the age at which criminal liability arises, or due to reconciliation;

in cases where they have been convicted of a crime of medium gravity or a serious crime and released by the court from criminal liability and punishment in accordance with the procedure provided for in Article 83 of the Criminal Code.

The decision on the advisability of referring minors who have not attained the age at which criminal liability arises to educational institutions with a special regime of confinement shall be made by the court upon the submission of the internal affairs body.

A submission for the placement of a minor specified in subparagraph 1) of Paragraph 2 of Article 14 in an institution with a special regime of confinement shall be forwarded by the internal affairs bodies to the court within thirty days from the date of issuance of the decision to terminate the criminal case against the said minor.

The grounds for keeping a minor in educational institutions with a special regime of confinement shall be: 1) a court ruling — in respect of persons who, after a ruling was issued to terminate the pre-trial investigation due to their not having attained the age at which criminal liability arises, have again committed a socially dangerous act; 2) a court judgment — in respect of persons convicted of a crime of medium gravity or a serious crime and released by the court from criminal liability and punishment in accordance with the procedure provided for in Article 83 of the Criminal Code.

A minor’s stay in an educational institution with a special regime of confinement may be terminated early in connection with the person attaining the age of majority, as well as where, on the basis of a submission by the administration of the educational institution with a special regime of confinement, the court concludes that the minor no longer requires the application of this measure for his or her rehabilitation.

The procedure for the operation of an educational institution with a special regime of confinement is established by the Standard Rules for the Operation of General Education Organizations by Type, approved by Order of the Minister of Education and Science of the Republic of Kazakhstan dated September 17, 2013.

According to Chapter 6 of the Standard Rules, minors specified in Paragraph 2) of Article 14 of the Law, that is, minors aged eleven to eighteen who have committed socially dangerous acts containing the elements of a crime and have been released from criminal liability, shall be referred to educational institutions with a special regime of confinement in order to ensure special conditions for upbringing, education and social rehabilitation.

The main objectives of educational institutions with a special regime of confinement are:

social adaptation and rehabilitation of minors;

prevention of offences, neglect, homelessness and anti-social acts among minors;

ensuring the protection of the rights and legitimate interests of minors;

formation of law-abiding conduct among minors;

ensuring continuity and unity of the education and upbringing process.

Educational institutions with a special regime of confinement are established for minors aged eleven to eighteen, subject to separate placement of males and females.

Minors shall be referred to an educational institution with a special regime of confinement for a period of six months to two years by court decision.

Minors with health conditions that constitute deviations in accordance with the Resolution of the Government of the Republic of Kazakhstan dated June 13, 2005, “On Approval of the List of Diseases Preventing the Confinement and Education of Minors in Special Educational Institutions and Educational Institutions with a Special Regime of Confinement,” shall not be referred to an educational institution with a special regime of confinement. When considering the issue of referring minors who abuse alcoholic beverages, narcotic drugs and psychotropic substances, or their analogues, to an educational institution with a special regime of confinement, the advisability of prescribing them a course of treatment for drug-related disorders shall be examined on a mandatory basis. Documents contained in the personal file, as well as information about minors, shall be entered into the Republican Database no later than 1 (one) working day from the moment the minor is admitted to an educational institution with a special regime of confinement.

The internal affairs bodies shall ensure the collection of the documents required for placement and the transportation of minors to an educational institution with a special regime of confinement.

According to Part 8 of the Article under consideration, the minor shall personally apologize to the victim for the harm caused; the personal apology shall be made by the offender in the presence of the court and other persons participating in the proceedings.

This measure is associated with a positive impact on the minor and may serve as an additional condition to other types of compulsory measures of educational influence.

Probation supervision, in accordance with Part 9 of the Article under consideration, shall be established for a period of up to one year at the minor’s place of residence, without isolation from society, in accordance with the rules set out in Part 2 of Article 44 of the Criminal Code.

According to Part 2 of Article 44 of the Criminal Code, probation supervision shall be exercised by an authorized state body and, by court decision, shall include the convicted person’s fulfilment of the following obligations: not to change his or her permanent place of residence, employment or study without notifying the authorized state body exercising supervision over the convicted person’s conduct; 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 offences.

In accordance with subparagraph 9) of Article 3 of the Penal Enforcement Code, probation supervision is the activity of authorized bodies aimed at monitoring the fulfilment by persons registered with them of the obligations imposed on them by law and by the court.

According to subparagraph 7) of Article 3 of the Penal Enforcement Code, probation means a system of types of activities and individually determined measures of a social and legal nature aimed at correcting the conduct of persons whose categories are determined by law, in order to prevent them from committing criminal offences.

Part 11 of the Article under consideration establishes the liability of a minor for intentional failure to comply with compulsory measures of educational influence. Thus, where a minor intentionally fails to comply with a compulsory measure of educational influence two or more times within one year, that measure shall be revoked by the court upon the submission of a specialized state body, and the materials shall be forwarded for the purpose of bringing the minor to criminal liability, provided that the limitation period for bringing the minor to criminal liability has not expired.

In accordance with the Law of the Republic of Kazakhstan “On the Prevention of Offences among Minors and the Prevention of Child Neglect and Homelessness,” the specialized state body vested with the authority to monitor the proper implementation of compulsory measures of educational influence is the internal affairs bodies of the Republic of Kazakhstan.

Commentary of 2021 on the Criminal Code of the Republic of Kazakhstan by Isidor Shamilovich Borchashvili, Honoured 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, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.

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