Illegal bringing a minor defendant to criminal responsibility and infringing on his constitutional rights
By the verdict of the Specialized Interdistrict court for juvenile affairs of Kyzylorda region dated April 1, 2019: y. previously not convicted, charged with the first part of Article 112 of the Criminal Code of the Republic of Kazakhstan (hereinafter referred to as the criminal code), in connection with reconciliation with the victim in the manner of mediation, released from criminal liability in accordance with the first part of Article 68 of the criminal code, the criminal case was terminated. By the verdict of the court, zh.went beyond the necessary defense and was found guilty of intentional infliction of serious harm to health. The criminal case was not considered on appeal. In the protest of the prosecutor general, due to the incorrect application of the criminal law, the court asked to cancel the verdict and terminate the proceedings. The Judicial Board of the Supreme Court for criminal cases, having heard the opinion of the prosecutor A. in support of the protest, that the sentence is subject to cancellation, the case is subject to termination, familiarized with the materials of the criminal case and the protest, considers that the force of the judicial act is subject to cancellation due to the following circumstances. The motivation indicated by the prosecutor general in the protest is justified and subject to satisfaction. The first part of Article 15 of the Criminal Code states that a sane individual who has reached the age of sixteen at the time of committing a criminal offense is subject to criminal liability. And in the second part of this article, the first part of Article 112 of the criminal code is not included in the number of crimes brought to justice from the age of fourteen. At the same time, the first paragraph of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated April 11, 2002 No. 6" on criminal offenses of minors and their involvement in the commission of criminal offenses and other antisocial actions " states that the courts should pay attention to the need for strict compliance with the requirements and rules established by law regarding legal proceedings on minors, timely and high-quality consideration of cases of this category.
Illegal bringing a minor defendant to criminal responsibility and infringing on his constitutional rights
Paragraph 2 of this resolution states that criminal procedural bodies are obliged to take measures to accurately determine the age (Year, Month, date of birth) of a person brought to criminal responsibility in juvenile cases. However, the court of first instance, correctly determining the Year, Month, and date of Birth of zh. in the verdict, brought him to illegal criminal liability, as a result of which he infringed on the constitutional rights of a minor. As it turned out from the case materials, J. was born on April 22, 2003, which is confirmed by his birth certificate registered in the case. And the case of a criminal offense in this case occurred on November 27, 2018. Therefore, zh.was 15 years old at the time of committing a criminal offense, that is, he is not a subject of a crime for bringing to criminal responsibility by the first part of Article 112 of the criminal code. A decision on termination of a criminal case against a person who has not reached the age at which criminal liability can be imposed in accordance with the law in part five of Article 35 of the Criminal Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) is subject to adoption on the grounds specified in Paragraph 2) of the first part of this article. In accordance with Part Eight of Article 35 of the CPC, the court, when establishing circumstances that exclude criminal prosecution, is obliged to resolve the issue of termination of the criminal case. Thus, due to the absence of a criminal offense in the actions of zh., the court verdict against him is subject to cancellation, and the criminal case is terminated. The judicial board recognizes the above violations of the law as gross violations committed by the judge who considered the case. In accordance with the requirement of Chapter 4 of the Criminal Procedure Code, the right of zh. to compensate for damage caused by illegal actions of the body conducting criminal proceedings must be recognized. The judicial board for criminal cases of the Supreme Court of the Republic of Kazakhstan annulled the verdict of the court of first instance against the convicted zh., on the basis of Paragraph 2) of part one of Article 35 of the CPC, the case was terminated due to the absence of a criminal offense in his actions. In accordance with Article 39 of the CPC, the right of zh. to compensate for damage caused by illegal actions of the body conducting criminal proceedings is recognized. The protest of the prosecutor general of the Republic of Kazakhstan was satisfied.
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