Commentary to article 79. Types of punishments imposed on minors of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan
1. The types of punishments imposed on minors are:
a) a fine;
b) deprivation of the right to engage in certain activities;
c) involvement in community service;
d) correctional work;
d-1) restriction of freedom;
f) deprivation of liberty.
2. A fine is imposed only if the convicted minor has independent earnings or property that can be levied. A fine is imposed in the amount of ten to five hundred monthly calculation indices or in the amount of wages or other income of a convicted minor for a period of two weeks to six months.
3. Deprivation of the right to engage in certain activities is imposed on minors for a period of one to two years.
4. Community service is assigned for a period of forty to one hundred and sixty hours, consists of performing work feasible for a minor, and is performed by him in his free time from study or main work. The duration of execution of this type of punishment by persons under the age of sixteen may not exceed two hours per day, and by persons between the ages of sixteen and eighteen - three hours per day.
5. Correctional labor is imposed on minors who have reached the age of sixteen by the time the court passes sentence, for a period of up to one year.
5-1. Restriction of freedom is imposed on minors for a period of one to two years.
6. Excluded.
7. Imprisonment of convicted minors may be imposed for a term not exceeding ten years, and for murder under aggravating circumstances or for a combination of crimes, one of which is murder under aggravating circumstances - twelve years. Persons who have committed minor crimes for the first time between the ages of fourteen and eighteen and moderate crimes between the ages of fourteen and sixteen are not sentenced to imprisonment.
8. Deprivation of liberty by juvenile convicts is served:
a) male minors sentenced to imprisonment for the first time, as well as female minors in general regime educational colonies;
b) male minors who have previously served their terms of imprisonment - in high-security educational colonies.
9. Depending on the nature and degree of public danger, the identity of the perpetrator and other circumstances of the case, the court, indicating the reasons for the decision, may order the convicted male minor to serve his term of imprisonment in a general regime educational colony.
10. The court may instruct the body executing the punishment to take into account certain characteristics of his personality when dealing with a minor convict.
The age-specific responsibilities of minors are reflected in the Criminal Code not only in the range of crimes, but also in the system of punishments applied to minors.
The Criminal Code does not provide for specific types of punishments applied only to minors. However, not all types of punishments provided for in the General Part of the Criminal Code (Article 39) can be applied to minors. In the commented article, the legislator gave an exhaustive list of the types of punishments imposed on minors. Of the ten main types of punishments provided for in Article 39 of the Criminal Code of the Republic of Kazakhstan for convicted adults, only six can be applied to minors. Such types of punishments as deprivation of the right to hold a certain position, restriction on military service, arrest, detention in a disciplinary military unit, the death penalty cannot be imposed on minors due to their social status or the excessive severity of certain types of punishments for persons who are not yet fully aware of their role in society, the specifics of crimes. the crimes committed by them, the specifics of the goals facing the punishment of juvenile offenders.
The Criminal Code reflects the specifics of the application of these types of punishments to minors. Thus, the elements of punishment in the types of punishments imposed on minors are significantly weakened compared to the punitive content of the same types of punishments applied to adults. If convicted adults are fined in the range of twenty-five to twenty thousand monthly calculation indices established by the legislation of the Republic of Kazakhstan, or in the amount of wages or other income of the convicted person for a period of two weeks to one year, then convicted minors are fined in the amount of ten to five hundred monthly calculation indices or in the amount of wages or other income of a convicted minor for a period of two weeks to 6 months. In this case, a fine is imposed only if the convicted minor has independent earnings or property that can be levied.
A minor may be deprived of the right to engage in certain activities only for a period of one to two years; adults - for a period of one to 5 years. The prohibition imposed by a court verdict applies not only in cases where a minor engages in professional activities in government organizations, but also when he does so privately, in organizations with a private form of ownership. For example, the prohibition to engage in the repair and maintenance of vehicles means that he is prohibited from engaging in activities related to the repair or maintenance of vehicles in general during the entire period specified in the sentence. Such a person, dismissed on the basis of a court verdict from the position of a mechanic for the repair and maintenance of cars of a state-owned enterprise, cannot be accepted for a position related to the repair and maintenance of vehicles, and in an enterprise with a private form of ownership.
The legislator has defined in detail the procedure for involving minors in community service. 42 of the Criminal Code of the Republic of Kazakhstan for convicted adults, community service is established for a period of sixty to two hundred and forty hours and is served no more than four hours a day. Minors are assigned to community service for a period of forty to one hundred and sixty hours, and the duration of its execution for persons under the age of sixteen may not exceed two hours per day, for persons aged 16 to 18 years - three hours per day. At the same time, involvement in community service for minors consists in performing work that is feasible for the convicted person, so that they do not undermine his health or affect his physical development. A minor may be involved in community service only in his/her free time from study or main work.
If correctional labor is imposed on adult convicts for up to two years, then it may be imposed on minors for up to one year. Correctional labor is imposed on only those minors who have reached the age of sixteen at the time of sentencing, and therefore this type of punishment cannot be imposed on persons who have committed a crime between the ages of 14 and 16.
The punishment in the form of restriction of freedom is served by a minor offender at the place of residence. In the process of serving this sentence, the convicted person is assigned by the court to perform certain duties, which makes it possible to control his behavior and the course of correction of a minor convict. Control over the behavior of a minor sentenced to restriction of liberty is carried out by the Criminal Enforcement Inspectorate under the Ministry of Justice of the Republic of Kazakhstan. 46 of the Criminal Code of the Republic of Kazakhstan establishes that convicts serving a sentence of restriction of liberty are allowed to study in higher and secondary specialized educational institutions located within the region at the place of serving their sentence. With the consent of the administration of the penal enforcement inspectorate, a convicted person may study at higher and secondary specialized educational institutions located in another locality.
The most severe form of punishment applied to minors is imprisonment. The specific features of this measure of punishment applied to minors are the terms of punishment.
In part 7 of the commented article, the legislator defined the rules for assigning this type of punishment to minors: the maximum term for which minors can be sentenced to imprisonment is 10 years, and for murder under aggravating circumstances or for a combination of crimes, one of which is murder under aggravating circumstances - 12 years; imprisonment is not imposed on persons who have committed for the first time minor crimes between the ages of 14 and 18 and moderate crimes between the ages of 14 and 16.
Paragraph 4 of the Regulatory Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan dated October 19, 2001 No. 15 "On certain issues of sentencing to imprisonment" states that imprisonment, as the most severe type of criminal punishment, may be imposed on minors within the time limits established by art. 79 OF THE Criminal Code OF the Republic of Kazakhstan. At the same time, the term of imprisonment for one crime, as well as for a combination of crimes and a combination of sentences, may not exceed 10 years.
Imprisonment for more than the specified period of up to 12 years may be imposed on minors only for murder committed under aggravating circumstances. In this case, the term of imprisonment imposed for the totality of crimes and the totality of sentences cannot be higher than the term imposed for murder committed under aggravating circumstances (i.e. 12 years).
Imprisonment for more than the specified period of up to 12 years may be imposed on minors only for murder committed under aggravating circumstances. In this case, the term of imprisonment imposed for the totality of crimes and the totality of sentences cannot be higher than the term imposed for murder committed under aggravating circumstances (i.e. 12 years).
Thus, by the verdict of the North Kazakhstan Regional Court dated February 15, 2002, M., born in 1983, who had no previous criminal record, was sentenced under paragraphs "d", "h", Part 2 of Article 96 of the Criminal Code of the Republic of Kazakhstan to 10 years in prison for murder committed by a group of persons with mercenary motives, under art. 2 paragraphs "b", "c", "d" of the Criminal Code of the Republic of Kazakhstan to 5 years in prison for robbery committed repeatedly by a group of persons by prior agreement, with illegal entry into residential premises, according to paragraph "b" of Part 3 of art. 179 of the Criminal Code of the Republic of Kazakhstan to 8 years in prison for committing a robbery causing serious injury to health, which negligently resulted in the death of the victim, under Part 4 of Article 185 of the Criminal Code to 6 years for unlawfully taking possession of a car without the purpose of theft with the use of violence dangerous to life or health, under Part 5 of Article 28 and paragraphs 175 of the Criminal Code of the Republic of Kazakhstan to 3 years for committing theft by a group of persons by prior agreement, repeatedly, with illegal entry into residential premises as an accomplice, under Part 5 of Article 28 and paragraph "b" of Part 3 of Art. 175 of the Criminal Code of the Republic of Kazakhstan to 5 years for committing theft on a large scale as an accomplice. Based on Part 3 of Article 58 of the Criminal Code of the Republic of Kazakhstan, 12 years of imprisonment in a general regime educational colony were determined for the totality of crimes by partial addition of punishments. The Supervisory Board of the Supreme Court of the Republic of Kazakhstan changed the verdict of the North Kazakhstan Regional Court of February 15, 2002, because M. committed crimes at a minor age and by virtue of Part 7 of Article 79 of the Criminal Code of the Republic of Kazakhstan and paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated October 19, 2001 "On certain issues of sentencing to imprisonment", he may not be sentenced to more than 10 years of imprisonment.
In the Regulatory Resolution 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 July 11, 2003 No. 4) It is indicated that the court has the right to make a decision on sentencing a minor to imprisonment only when his correction and re-education is impossible without isolation from society, indicating in the verdict the reasons for the decision.
If a minor is sentenced to imprisonment, taking into account the rules provided for in part 4 of Article 53 and parts 2, 3 of Article 56 of the Criminal Code, then half and three quarters of the term or amount of the most severe type of punishment should be calculated from 10 or 12 years of imprisonment, respectively, which could be imposed on the minor for the completed crime.
If a person commits several crimes, some of which were committed before the age of 18, and others at the age of majority, the court, when imposing punishment for a combination of crimes, must first impose punishment for crimes committed under the age of eighteen, taking into account the requirements of Article 79 of the Criminal Code, and then for crimes committed after reaching adulthood. and the final punishment is according to the rules of Article 58 of the Criminal Code.
Based on the content of part 1 of Article 79 of the Criminal Code, additional punishment in the form of confiscation of property cannot be applied to persons who have committed a crime under the age of a minor. If the sanction of the article of the special part of the Criminal Code provides for the confiscation of property as a mandatory additional punishment, the courts should motivate its non-application in the verdict with reference to Article 79 of the Criminal Code.
In accordance with Part 1 of Article 48 of the Criminal Code of the Republic of Kazakhstan, deprivation of liberty consists in isolating a convicted person from society by sending him to a penal colony or placing him in a correctional colony of general, strict, special regime or in prison.
The United Nations Rules for the Protection of Minors Deprived of Their Liberty state that "incarceration of a minor in a correctional institution should always be used as a last resort and for the minimum necessary period of time."
79 of the Criminal Code of the Republic of Kazakhstan defines the type of penal institution in which juvenile convicts serve their imprisonment - an educational colony. Only the general regime of serving a sentence is established for female minors. General and enhanced punishment regimes have been established for male minors. Male minors who have previously served their sentences are placed in high-security educational colonies; the general regime is determined for persons convicted for the first time. However , in part 9 of the commented article provides an exception to this rule: in some cases, depending on the nature and degree of public danger of the act, the identity of the perpetrator and other circumstances of the case, the court was given the right, indicating the reasons for the decision, to appoint convicted male minors to serve their imprisonment in a general regime educational colony.
In accordance with paragraph 13 of the Regulatory Decree "On certain issues of sentencing to imprisonment" dated October 19, 2001, the Supreme Court of the Republic of Kazakhstan clarifies that a person who has committed a crime as a minor and reached the age of majority at the time of sentencing is assigned a correctional colony regime for serving imprisonment in accordance with Article 48 of the Criminal Code.
Taking into account the special importance of achieving educational goals when sentencing minors, the court, in accordance with Part 10 of Article 79 of the Criminal Code of the Republic of Kazakhstan, may instruct the body executing the punishment to take into account certain personality traits when dealing with a minor convict. These may be the characteristics of the minor's psyche, physical weakness and poor health, abilities and inclinations to a certain type of activity.
A minor's age as a mitigating circumstance is taken into account in conjunction with other mitigating and aggravating circumstances (Article 80 of the Criminal Code).
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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