Possibility of a Flexible Approach to Persons Who Were Over 18 but Under 21 Years Old at the Time of Committing a Crime

📘 GENERAL CHARACTERISTICS

Article 90 of the Criminal Code of the Republic of Kazakhstan introduces the possibility of a flexible approach toward persons who were over 18 but under 21 years old at the time of committing a crime. This category refers to so-called “youth” (young adults) who are legally considered adults but may, in social, psychological, and behavioral terms, possess characteristics typical of minors.

🎯 PURPOSE OF THE PROVISION

This article is aimed at:

• Taking into account the specific features of transitional age (psychological immaturity, susceptibility to influence);

• Creating conditions for an educational rather than repressive approach;

• Reducing recidivism through resocialization by means of lenient measures;

• Implementing the principle of individualization of criminal liability (Article 52 of the Criminal Code of the Republic of Kazakhstan).

📑 STRUCTURE AND CONTENT OF THE ARTICLE

🔹 “In exceptional cases, taking into account the nature of the committed act and the personality of the offender, the court may apply the provisions of this section...”

📌 Key elements:

1. Age threshold: from 18 to 21 years — applies exclusively to persons who committed a crime at this age;

2. Discretionary nature: application of the provisions is not mandatory but left to the court’s discretion;

3. Criteria for application:

   • the nature and degree of public danger of the act;

   • the personality of the offender (behavior, remorse, social status, mental development);

4. Exception: placement in an educational institution with a special regime of detention cannot be applied (this measure is reserved exclusively for minors — see Article 85(5) of the Criminal Code of the Republic of Kazakhstan).

📚 EXAMPLES OF PROVISIONS THAT MAY BE APPLIED

The court may apply to persons aged 18–21 the provisions of:

• Articles 84–87 of the Criminal Code:

  • warning;

  • transfer under supervision;

  • restriction of leisure;

  • probation supervision;

  • replacement of part of the sentence;

  • parole on preferential grounds;

• Article 89 — reduced periods for expungement of conviction;

• Article 88 — reduced limitation periods.

⚖️ EXAMPLE FROM PRACTICE

Case No. 2-1576/2021:Citizen A., 19 years old, was convicted of theft (Article 188 of the Criminal Code of the Republic of Kazakhstan). He was positively characterized, had no prior convictions, fully compensated the damage, and expressed remorse. Referring to Article 90 of the Criminal Code, the court applied:

• compulsory educational measures;

• restriction of leisure;

• probation supervision for a period of 6 months.

Placement in a special regime institution was not applied, as it is not permitted by law.

🔎 RELATED PROVISIONS

📌 Criminal Code of the Republic of Kazakhstan:

• Section V of the Special Part (Articles 84–89) — specifics of criminal liability of minors;

• Article 52 — individualization of punishment;

• Article 72 — parole;

• Article 85 — terms and content of educational measures;

• Article 73 — replacement of punishment.

📌 Penal Enforcement Code of the Republic of Kazakhstan:

• Chapters 13 and 14 — execution of punishment in respect of minors and persons under 21;

• Articles 160 and 164 — conditions for replacement of punishment.

🌐 INTERNATIONAL STANDARDS AND RECOMMENDATIONS

🔸 UN Convention on the Rights of the Child (1989):

• Although it does not directly apply to persons over 18, it encourages humane treatment and continuation of an educational approach toward “young adults.”

🔸 UN Beijing Rules (1985):

• Paragraph 17.3: “Young adult offenders who, by reason of their development, are comparable to juveniles may be dealt with under the juvenile justice system.”

🔸 European Court of Human Rights (ECHR):

• In a number of decisions (notably T v. United Kingdom), the Court emphasized the need to consider not only formal age but also the level of development and vulnerability of the individual.

🧩 PRACTICAL ISSUES

1. Judicial formalism: the article is rarely applied due to underestimation of its potential.

2. Inconsistent approaches: different judges interpret the notion of “exceptional cases” differently.

3. Lack of mechanisms for assessing maturity: psychological evaluations are often not conducted to substantiate the application of Article 90.

✅ CONCLUSION

Article 90 of the Criminal Code of the Republic of Kazakhstan is a flexible and progressive instrument allowing the application of lenient, educational measures to young adults who are close in age and psychology to minors.

Application of this provision:

• corresponds to individualized justice;

• helps reduce recidivism;

• promotes resocialization;

• implements international recommendations on the humanization of criminal proceedings. 

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