Commentary to article 81. Release of minors from criminal liability and punishment of the Criminal Code of the Republic of Kazakhstan

     1. A minor who has committed a minor offense or who has committed a moderate offense for the first time may be released from criminal liability by a court if it is established that his correction is possible without criminal prosecution. In this case, compulsory educational measures provided for in Article 82 of this Code may be applied.      

2. A minor convicted for the first time for committing a crime of minor or moderate gravity may be released from punishment by a court if it is recognized that his correction can be achieved through the application of compulsory educational measures provided for in Article 82 of this Code.      

The commission of a crime by a person under the age of eighteen does not mean that the penalties specified in art. 79 OF THE Criminal Code OF the Republic of Kazakhstan.      

In the commented article, the legislator defines not only the basis for the release of minors from criminal punishment, but also the basis for the release of minors from criminal liability. At the same time, compulsory measures of educational influence act as an alternative in case of release of a minor from criminal responsibility and punishment. The release of a minor from criminal responsibility and punishment with the application of compulsory educational measures to him is possible only if the following three interrelated conditions are mandatory:      

the commission by a minor of a minor crime or the commission of a moderate crime for the first time;      

a positive characteristic of a minor, which leads the court to believe that his correction can be achieved without bringing the person to criminal responsibility; at the same time, compulsory educational measures may be applied to him.      

When deciding on the release of a minor from criminal responsibility and punishment and the expediency of using coercive educational measures, it is necessary to proceed from an analysis of the nature and degree of public danger of the crime committed (the severity of the crime), an assessment of the identity of the perpetrator, the conditions of his upbringing, marital status and other circumstances that give the court reason to be sure that in order to correct the perpetrator No criminal punishment is required. Thus, the court's conviction is formed on the basis of a comprehensive analysis of both what the minor has done and his personality, the circumstances of the case, the level of his legal awareness, moral attitude, relationships with parents, others, etc.      

The decision on the application of compulsory educational measures can be taken only by the court and only when considering the case in the main court proceedings when passing a guilty verdict. Compulsory educational measures in the form of transfer to the supervision of parents or persons replacing them, or a specialized state body, as well as in the form of restrictions on leisure time and the establishment of special requirements for behavior, may be applied to a minor during the period necessary, in the opinion of the court, for his correction or re-education, or until he reaches the age of eighteen, which should be indicated in the verdict.      

In paragraph 16 of 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 07/11/03 No. 4) states that the law does not provide for the possibility of replacing educational measures with criminal penalties under any circumstances, including when a minor evades them or commits a new crime during the period of application of compulsory educational measures.      

Minors who have been subjected to educational measures are recognized as having no criminal record in accordance with Part 2 of Article 77 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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