Commentary to article 78. Criminal liability of minors of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. Minors who are covered by this chapter are recognized as persons who, at the time of the commission of the crime, were fourteen but under eighteen years of age.
2. Punishment may be imposed on minors who have committed crimes, or compulsory educational measures may be applied to them.
The Criminal Code of the Republic of Kazakhstan has an independent section that establishes the specifics of criminal responsibility and punishment of minors, which corresponds to the principles of humanism and justice reflected in the Convention on the Rights of the Child, approved by the UN General Assembly and entered into force on October 15, 1990.
The section contains provisions regulating the system and types of punishments, their appointment to minors and exemption from criminal liability and punishment.
The norms regulating the specifics of juvenile criminal liability are combined, systematized and allow taking into account the age-related psychophysiological characteristics of this category of persons at any stage of the appointment and execution of punishment and the repayment of criminal records.
The Criminal Code recognizes minors as persons who were fourteen years old at the time of the commission of a crime, but under the age of eighteen. At the same time, as indicated in paragraph 2 of the regulatory resolution of the end of the form of the beginning of the form of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 No. 6 "On judicial practice in cases of juvenile delinquency and their involvement in criminal and other antisocial activities" (as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 07/11/03 No. 4), in juvenile matters, the body conducting the criminal proceedings is obliged to take measures to establish the exact date of birth (date, month, year of birth) of the person being prosecuted. In the absence of documents confirming the age or if there are doubts about the authenticity of these documents, it is necessary to appoint an expert examination in accordance with paragraph 2 of Article 241 of the Criminal Procedure Code of the Republic of Kazakhstan. In such cases, the birthday is considered to be the last day of the year, which is named by experts. When experts determine the age by the minimum and maximum number of years (for example, from 14 to 15 years), it is necessary to proceed from the minimum age proposed by the expert examination.
A person is considered to have reached the appropriate age not on the day of his birth, but after zero hours of the following day.
The minimum age of a minor as a special participant in a criminal legal relationship is the minimum age of criminal responsibility. The criminal law of Kazakhstan limits the minimum age of criminal responsibility to 14 years. The list of crimes for which responsibility has been established since the age of 14 is given in Article 15 of the Criminal Code. The legislator based this list on the degree of public danger of certain acts stipulated by the Criminal Code, their prevalence among minors and the possibility at this age to realize the nature and severity of their consequences. At the same time, if a minor, although he has reached the age of criminal responsibility, but due to mental retardation unrelated to a mental disorder, could not fully realize the actual nature and social danger of his actions (inaction) or direct them during the commission of a crime of minor or moderate severity, he is not subject to criminal liability (Part 3 of Article 15 of the Criminal Code).
At the same time, it should be borne in mind that in accordance with paragraph 4 of the above-mentioned normative resolution of the end of the form of the beginning of the form of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002, courts are advised, if there is information giving grounds to assume mental retardation of a minor, it is mandatory to appoint a comprehensive psychological and psychiatric examination to determine the level of his mental development. When committing a grave or especially grave crime, such a lag in the mental development of a minor should be taken into account when sentencing him.
Minors under the age of 14 are not subject to criminal liability. At the same time, the legislator proceeds from the fact that a minor cannot fully realize the actual nature and social danger of his actions (inaction) or direct them.
In part 2 of the commented article, it is established that minors who have committed crimes may be punished or compulsory educational measures may be applied to them. The solution to this issue depends, first of all, on the nature and degree of social danger committed by minors. it also depends on the circumstances of the case, the conditions of upbringing, etc. In order to correctly resolve issues of bringing a minor to criminal responsibility and sentencing him, it is also necessary to clarify the individual and personal characteristics of a minor such as suggestibility, excitability, dependence, a tendency to bravado, leadership, fantasy, and others. For this purpose, it is necessary to interrogate persons who are raising a minor and other persons, to demand official documents concerning his health and intellectual development, as well as to examine personal documents belonging to him (diaries, notes, letters, audio recordings, etc.).
Commentary from 2007 to the Criminal Code of the Republic of Kazakhstan from the Honored Worker of Kazakhstan, Doctor of Law, Professor, Academician of the Kazakhstan National Academy of Natural Sciences BORCHASHVILI I.Sh.
Date of amendment of the act: 08/02/2007 Date of adoption of the act: 08/02/2007 Place of acceptance: NO Authority that adopted the act: 180000000000 Region of operation: 100000000000 NPA registration number assigned by the regulatory body: 167 Status of the act: new Sphere of legal relations: 028000000000 Report form: COMM Legal force: 1900 Language of the Act: rus
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