Committing sexual acts under the age of sixteen

In accordance with paragraph 4) In part 1 of Article 53 of the Criminal Code, the presence of young children is a circumstance mitigating criminal liability and punishment by the verdict of the specialized interdistrict juvenile court of the Zhambyl region dated May 17, 2021: S., who had no previous criminal record, was sentenced under part 1 of Article 122 of the Criminal Code to 1 year and 6 months of imprisonment in an institution of the minimum security penal system with life imprisonment for the right to hold positions in children's, including children's medical organizations, as well as to engage in activities, related to minors. The procedural costs in the amount of 213,129 tenge were collected from convicted S. to the state income, and 43,755 tenge was collected to the Compensation Fund for Victims. By the verdict of the court, S. was found guilty of committing sexual acts with the victim A., who had not reached the age of sixteen. The verdict was upheld by the decision of the Judicial Board for Criminal Cases of the Zhambyl Regional Court dated June 15, 2021. The Acting Prosecutor General of the Republic of Kazakhstan, in his protest, without disputing the evidence of guilt and the qualification of S.'s actions, points out the need to change judicial acts regarding punishment. According to the prosecutor, the court unreasonably recognized the convicted person's admission of guilt as a mitigating circumstance, despite the fact that the convicted person admitted guilt only in court.

Committing sexual acts under the age of sixteen

The court did not take into account the nature and social danger of the crime, the consequences that occurred in the form of psychological trauma to the minor victim, as well as the opinion of the minor victim himself, who asked to impose a custodial sentence on the convicted person. According to paragraph 9) of the Law of the Republic of Kazakhstan dated December 30, 2020 No. 393-VI SAM "On Amendments and additions to Certain Legislative Acts of the Republic of Kazakhstan on the implementation of certain provisions of the Address of the Head of State to the People of Kazakhstan dated September 1, 2020 "Kazakhstan in a new reality: time for action", in Article 122, paragraph two The first one was supplemented with the words "with life imprisonment for the right to hold certain positions or engage in certain activities." This Law was officially published on December 21, 2020 and entered into force on January 11, 2021. Convicted S. the crime was committed before the introduction of amendments and additions to part 1 of Article 122 of the Criminal Code - on November 18, 2020. He believes that the court, in violation of the requirements of part 3 of Article 6, by imposing additional punishment, worsened the situation of the convicted person. The prosecutor raises the issue of expelling the mitigating punishment of S. his admission of guilt, the appointment of 4 years of imprisonment to be served in an institution of the medium-security penal system, the abolition of additional punishment in the form of life imprisonment for the right to hold positions in children's, including in children's medical organizations, as well as to engage in activities related to minors. The guilt of S., in addition to his confessions, is proved by the testimony of the minor victim A., his legal representative, the minor R., the conclusions of the examinations and other evidence examined by the court. As follows from the conclusion of the forensic psychological and psychiatric examination, the minor victim died. He correctly perceived the circumstances relevant to the case, he can testify about them, and he was not found to have a pathological tendency to fantasize and increased lies. The conclusion of the forensic molecular genetic examination established that in the biological layers on the gauze swab, from the flushing of the surface of the genital organ of the minor victim A. there is DNA of two persons belonging to convicted S. and victim A.

Thus, the judicial authorities, having examined the totality of the evidence, came to the correct conclusion about the proof of S.'s guilt and the qualification of his actions under part 1 of Article 122 of the Criminal Code. In the protest, the Acting Prosecutor General of the Republic of Kazakhstan raises the issue of excluding a mitigating circumstance from the sentence of the convicted person - a guilty plea, since the convicted person admitted his guilt only during the court session, and not during the pre-trial proceedings. However, the criminal law does not require a guilty plea from the moment of pre-trial proceedings to resolve the issue of mitigation of criminal liability and punishment. According to the clarifications of paragraph 17 of the Supreme Court's regulatory decree No. 4 dated April 20, 2018 "On the court Verdict", non-admission of guilt should be regarded as a way to protect a person from the charge and, therefore, it should not be considered as a circumstance negatively characterizing his personality. In accordance with the requirements of article 77 of the Constitution of the Republic of Kazakhstan, no one is obliged to testify against himself. As can be seen from the materials of the criminal case, S. admitted guilt in court and gave detailed testimony about the circumstances of the crime. As follows from Part 2 of Article 53 of the Criminal Code, the clarifications contained in paragraph 4 of the normative resolution of the Supreme Court of June 25, 2015 No. 4 "On certain issues of criminal punishment", the resolution of the issue of recognition of mitigating circumstances is not limited to the prosecution and should be based on the factual circumstances of the case established in the main trial.

Committing sexual acts under the age of sixteen

Thus, in order to recognize a circumstance mitigating criminal liability and punishment of a convicted person, an admission of guilt does not matter at what point the convicted person admitted his guilt in the act charged against him: during pre-trial proceedings or in court. The legislator has not established such restrictions. Therefore, it is impossible to agree with these arguments of the prosecutor. In addition, the materials of the criminal case confirm that the convicted S. there is a minor child, A., born on August 23, 2013 (birth certificate dated September 3, 2013 No. 3350336 on registration of entry for No. 10-190-13-0006552). In accordance with paragraph 4) In part 1 of Article 53 of the Criminal Code, the presence of minor children is a circumstance mitigating criminal liability and punishment, which must necessarily be recognized as such. In this regard, the presence of a minor child with convicted S. should be taken into account as a circumstance mitigating his punishment. Aggravating circumstances and punishment in the case have not been established. The presence of mitigating circumstances not provided for as a sign of a committed crime, and the absence of aggravating circumstances, provides for the imposition of punishment according to the rules of paragraph 1) of part 2 of Article 55 of the Criminal Code (as amended at the time of the commission of the crime, before the amendments made by the Law of December 30, 2020), according to which, when committing a crime of moderate severity, the term or the amount of the main type of punishment may not exceed the maximum term or amount provided for in the relevant article of the Special Part of this Code. The court has complied with the specified requirements of the law when imposing the main punishment. The court took into account that, according to part 3 of Article 11 of the Criminal Code, the committed crime was classified by the legislator as a crime of moderate severity in terms of the nature and degree of public danger. By studying the personality of S. It was established that he had no previous criminal record, and had a dependent minor daughter, A., born on August 4, 2004, and a minor daughter, A., born on August 23, 2013.

The court also took into account the opinion of the minor victim A., expressed by him during his interrogation at a court hearing on April 23, 2021, on the imposition of a custodial sentence on the convicted person, and the position of the injured party at a court hearing on May 14, 2021, during the debate on compensation for moral damage and the imposition of a light sentence on the convicted person. Having established circumstances mitigating the responsibility and punishment of the convicted person and the absence of aggravating circumstances, when imposing the main punishment, the court proceeded from the requirements of paragraph 1) of part 2 of Article 55 of the Criminal Code (as amended on December 27, 2019). Thus, since the sanction of part 1 of Article 122 of the Criminal Code at the time of the crime committed by S. provides for punishment in the form of restriction of liberty for up to 5 years or imprisonment for the same period, according to paragraph 1) of part 2 of Article 55 of the Criminal Code, the term of punishment may not exceed 2 years and 6 months of imprisonment. In such circumstances, the protest arguments for increasing the term of S.'s imprisonment to 4 years are not based on the law. At the same time, the judicial authorities made a mistake in applying the norms of substantive law when imposing additional punishment. c. the crime was committed on November 18, 2020. The wording of part 1 of Article 122 of the Criminal Code in force at the time of his commission of the crime did not provide for additional punishment in the form of life imprisonment for the right to hold certain positions or engage in certain activities, therefore it cannot be applied to S. The amendment to the sanction of part 1 of Article 122 of the Criminal Code with the inclusion of this additional punishment was introduced by Law No. 393-VI SAM dated December 30, 2020 "On Amendments and Additions to Certain Legislative Acts of the Republic of Kazakhstan on the implementation of certain provisions of the Address of the Head of State to the People of Kazakhstan dated September 1, 2020 "Kazakhstan in the New Reality: Time effective from January 11, 2021.

In accordance with article 6 of the Criminal Code, a law that increases responsibility or punishment, or otherwise worsens the situation of the person who committed this act, has no retroactive effect. In this regard, the protest arguments about the illegality of the court's imposition of additional punishment in the form of life imprisonment for the right to hold positions in children's, including children's medical organizations, as well as to engage in activities related to minors, are well-founded. However, according to part 3 of Article 50 of the Criminal Code, deprivation of the right to hold a certain position or engage in a certain activity may also be imposed in cases not provided for in the relevant article of the Special Part as an additional punishment if, taking into account the nature and degree of public danger of the committed act and the identity of the perpetrator, the court finds it impossible for him to retain the right to hold certain positions. positions and engage in certain activities. In accordance with parts 1, 2 of Article 50 of the Criminal Code (as amended on December 27, 2019), the essence of the deprivation of the right to hold a certain position or engage in a certain activity is the prohibition to hold certain positions in the civil service, in local governments, financial organizations, or engage in certain professional or other activities and is established for a period of one year up to ten years old. The materials of the case established that S. He provided diagnostic counseling and dental services to the minor victim A., without having the appropriate license. In this regard, the Judicial Board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan considers it necessary to change the appointed S. additional punishment in the form of life imprisonment for the right to hold positions in children's, including children's medical organizations, to engage in activities related to minors, for the deprivation of the right to hold positions in children's, including children's medical organizations, to engage in activities related to minors, for a period of 10 (ten) years.

According to paragraph 5) of part 1 of Article 485 of the Criminal Code, the basis for the cassation review of judicial acts that have entered into force, specified in the first part of Article 484 of this Code, is the incorrect application of the criminal law, which resulted in the incorrect imposition of punishment. Based on the above, the judicial board for Criminal Cases of the Supreme Court of the Republic of Kazakhstan changed the judicial acts of local courts in respect of S. The circumstance of having a minor child, born on August 23, 2013, was recognized as mitigating criminal liability and punishment of the convicted person.; The additional penalty of life imprisonment for the right to hold positions in children's, including children's medical organizations, as well as to engage in activities related to minors, has been replaced by deprivation of the right to hold positions in children's, including children's medical organizations, as well as to engage in activities related to minors, for a period of 10 (ten) years old. The rest of the judicial acts remained unchanged. The protest of the Acting Prosecutor General of the Republic of Kazakhstan was partially satisfied.

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases