Commentary to article 80. Sentencing a minor of the Criminal Code of the Republic of Kazakhstan of the Criminal Code of the Republic of Kazakhstan

     1. When sentencing a minor, in addition to the circumstances provided for in Article 52 of this Code, the conditions of his life and upbringing, the level of mental development, other personality traits, as well as the influence of older persons on him shall be taken into account.      

2. The minor's age as a mitigating circumstance is taken into account in conjunction with other mitigating and aggravating circumstances.      

The most important principle of criminal law is the principle of individualization of punishment, expressed in the requirement of the law to take into account the individual characteristics of the committed crime and the personality of the perpetrator when imposing punishment.      

The general principles of sentencing specified in art. 52 of the Criminal Code of the Republic of Kazakhstan apply to minors, however, there are a number of features related to both the personality of the minor and the legal assessment of his behavior during the commission of a crime and the circumstances that led a particular person to commit a crime.:      

1) the living conditions and upbringing of the perpetrator;      

2) the level of his mental development;      

3) other personality characteristics of the minor;      

4) the influence of older persons on the convicted person.      

These circumstances are directly related to the age characteristics of this category of persons. The age-related features of a minor's psychology, which include the desire to imitate adults, youthful maximalism, unclear ideas about the boundary between good and evil, a false sense of camaraderie, the dominant position of arousal processes over inhibition processes, and so on, are determined by the psychophysiological state of the growing adolescent body. Persons under the age of eighteen are not yet so socialized that they can fully understand the social significance of their illegal behavior. A minor reacts more sensitively than an adult to external influences, and his psyche is easily vulnerable. When establishing the conditions of life and upbringing, it is necessary to clarify the circumstances related to the presence of parents in a teenager, with the fulfillment by parents or persons replacing them of the duties of raising a teenager, his domestic environment, etc. Judicial practice shows that one of the criminogenic factors is the residence of teenagers in single-parent families. Therefore, a detailed analysis of the living conditions and upbringing of a minor is also required to resolve the issue of responsibility of persons involved in the upbringing of a teenager. According to paragraph 17 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated 04/11/2002. "On judicial practice in cases of juvenile delinquency and their involvement in criminal and other antisocial activities" when sentencing minors, courts are required, in addition to the circumstances specified in art. 2 of the Criminal Code of the Republic of Kazakhstan, to take into account the conditions of their life and upbringing (an unfavorable family situation, rude, sometimes cruel attitude towards teenagers from parents, close relatives, etc.), the level of mental development, personality traits (presence of a mental disorder, imbalance, short temper, etc.), motives for committing crimes (childish mischief, "for company", envy, vindictiveness, etc.), the influence of older people on a teenager.      

When committing a crime, minors should find out how much the teenager realized the value of the object. Minors may not always be fully and correctly aware of the diverse and complex aspects and elements of public relations protected by law; they often believe that they are encroaching on a less valuable object in comparison with its actual significance.      

Regarding the various forms of guilt, it should be borne in mind that even in intentional crimes, the intent may vary in the degree of awareness of the perpetrator of his actions, the degree of foresight of the consequences, the time of the intent (direct and indirect, premeditated and sudden, etc.). In crimes committed by adolescents, in most cases, the intent is poorer in content than adults.      

When determining the nature and degree of public danger of a crime committed by a teenager, the motive and purpose of the crime are of great importance.      

At the same time, when sentencing minors, it should be borne in mind that often, even for crimes whose obligatory feature is base motives, the dominant motives of a teenager's behavior are not base, but other motives. Thus, thefts, robberies, and robberies are sometimes motivated by selfish motives in adolescents, combined with motives of mischief, the desire to establish themselves in a group, and the desire to fill their free time. Hooliganism and rape are sometimes associated with the desire to keep up with friends, to look like an adult, brave, independent, etc.      

The minor of the perpetrator, by virtue of paragraph "b" of Part 1 of Article 53 of the Criminal Code of the Republic of Kazakhstan, is a circumstance mitigating criminal liability and punishment. However, this circumstance should not be given any exceptional, decisive importance. Courts should not interpret the minor age of a person who has committed a crime as a mitigating circumstance. It is recognized as such only in combination with other mitigating and aggravating circumstances. The Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan "On the observance by courts of legality in the imposition of criminal punishment" dated 30.04.99 states that courts should strictly comply with the requirements of the law on a strictly individual approach to sentencing, taking into account the nature and degree of public danger of the crime committed, the identity of the perpetrator and the circumstances of the case, mitigating and aggravating responsibility.      

The legal nature of a minor as a mitigating circumstance lies both in the fact that a teenager often does not realize either the social significance of his actions and their possible results, or the consequences that may occur for him personally as a result of committing a crime, and in the fact that due to age characteristics, on the one hand, Minors are more sensitive than adults to the hardships and restrictions associated with punishment, and on the other hand, adolescents are much easier to correct., Therefore, in most cases it is impractical to apply harsh punishments to them.      

Regarding the consideration of mitigating and aggravating circumstances, it is necessary first of all to keep in mind that in the criminal assessment of a minor's crime, each mitigating circumstance reduces the punishment of the perpetrator more, and each aggravating circumstance increases the punishment less than is the case under similar conditions in adult cases. This is explained by the fact that in every case of a teenager, any of the mitigating circumstances is already a combination of at least two mitigating factors, where the second is a minor.      

For crimes committed by adolescents, mitigating circumstances such as sincere repentance and active assistance in solving the crime are more common than others; the commission of a crime due to a combination of personal, family or other circumstances; the commission of a crime as a result of physical or mental coercion or due to material, official or other dependence. The latter happens when a teenager is involved in criminal activity by his parents or their surrogates or direct supervisors, for example, foremen. As with adults, the court has the right to recognize circumstances not specified in the law as mitigating (Part 2 of Article 53 of the Criminal Code of the Republic of Kazakhstan). Juvenile sentences often refer to mitigating circumstances such as the presence of adult instigators, the commission of a crime under the influence of others, a secondary role in the crime, etc.      

When individualizing the punishment of minors, one should be very careful in assessing the aggravating circumstances. This applies to the commission of a crime by teenagers in a group that is an aggravating circumstance. It is known that jointly committed offenses are one of the forms of realization of the desire for communication and subordination to the norms of group behavior characteristic of adolescents. But the majority of juvenile delinquent groups either do not have clear signs of internal organization, or are organized to commit a single crime. The participation of a minor in a crime committed by a group of persons by prior agreement or an organized group should not be considered as an aggravating circumstance in the case when the teenager is involved in the crime by adults and took a minor part in the crime.      

Poor living conditions and upbringing of a teenager, homelessness, as well as the influence of adults who have involved a teenager in committing a crime, can only mitigate his responsibility. The court decided otherwise in the case of K., who was found guilty of theft by prior agreement with other persons. In support of the custodial sentence, the court stated in the verdict that there were no conditions in the family for K.'s upbringing: the mother was ill, a disabled person of group II, and had other than K. two more young children, brought up by K. He does not pay attention, his father is serving a prison sentence. He fell under the influence of adults who had previously served sentences, with whom he committed a crime, while remaining at large, he may again find himself in the same environment and commit a new crime. The cassation instance, having indicated to the court by a private ruling that the mitigating circumstance was incorrectly assessed, applied a compulsory measure of educational influence to K. instead of punishment, placing K. in a special vocational school.      

Along with the imposition of unreasonably harsh punishments on minors, the courts also allow the imposition of unjustifiably lenient punishments that do not correspond to the severity of the crimes committed and the identity of the perpetrators, as a result of which minors experience a sense of impunity for the crime committed.       The circumstances characterizing the living conditions, upbringing and commission of a crime by a teenager should be investigated comprehensively, in their entirety, otherwise erroneous conclusions on this issue may be drawn.      

A fair punishment for a minor is the punishment that ensures the best way to correct him. At the same time, the punishment should not be excessively severe.      

The Convention on the Rights of the Child recommends that measures be taken to avoid bringing children to court. It requires that minors who are accused or found guilty of a crime be treated with consideration for "the age of the child and the desirability of facilitating his reintegration and fulfilling a useful role in society."      

Rule 4 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice (known as the Beijing Rules) is to use a modern approach to determine a child's ability to endure moral and psychological difficulties associated with criminal responsibility, i.e. to determine the possibility of holding a minor accountable for an offense committed by him due to his individual characteristics..      

When making a court decision against a minor, it should be borne in mind that when imposing punishment, there may be some contradictions between re-education and retribution; assistance and suppression and punishment; general warning and individual punishment. The rules should be considered as principles that should help ensure the protection of the rights of juvenile offenders. Rule 17.1 (b) promotes the widest possible use of alternatives to imprisonment for minors, taking into account the need to meet their specific needs. The probation system should be applied as widely as possible through the imposition of suspended sentences, deferrals, etc. It is necessary to avoid incarceration of minors, except in cases where there is no other appropriate measure that could ensure the safety of society.      

Rule 18.1 lists some important measures of influence and sanctions that are successfully applied in various legal systems. Such measures can be implemented in combination with each other and include:      

a) a decree on guardianship, guidance and supervision;      

b) probation;      

c) involvement in socially useful work;      

d) monetary penalties such as fines.      

Another set of rules is the UN Rules for the Protection of Minors Deprived of Their Liberty (UN General Assembly Resolution 45/113 of December 14, 1990). The purpose of the Rules is to establish minimum standards adopted by the United Nations for the protection of minors deprived of their liberty in any form, in accordance with human rights and fundamental freedoms, as well as to counter the adverse effects of all types of imprisonment and promote physical and mental development. The Rules for the Protection of Minors Deprived of Their Liberty pay great attention to the impact, regime, education, and rehabilitation in terms of both protecting the rights and ridding young people of the stigma in the eyes of society.      

The Beijing Rules and Regulations for the Protection of Juveniles Deprived of Their Liberty make it clear that when deprivation of liberty is applied to minors, the punitive element should be minimized as much as possible.      

The successful correction of a juvenile offender presupposes the existence of a set of social and economic conditions necessary for his normal entry into society. Among these conditions, the most important should be noted the possibility of communication of a minor in a socially healthy environment, the absence of harmful influences, the possibility of obtaining a profession for a minor and engaging in legitimate activities that satisfy his material and spiritual needs.      

The Plenum of the Supreme Court of the Republic of Kazakhstan, in its resolution No. 1 dated 30.04.1999 "On the observance by courts of legality in the imposition of criminal punishment", recommended that courts, when discussing the issue of sentencing minors, take into account that only those types of criminal punishment specified in Article 79 of the Criminal Code of the Republic of Kazakhstan can be applied to them, and their terms and amounts are not they may exceed the limits set by the specified article.

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.                  

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