Referral of minors to special educational institutions for children with deviant behavior or an organization with a special regime of detention
Jurisdiction.
According to the third part of Article 27 of the CPC, cases of disputes on the referral of minors to special educational institutions for children with deviant behavior or an organization with a special regime of detention are under the jurisdiction of specialized inter-district juvenile courts. However, the law provides for the possibility of transferring these cases at the request of the legal representatives of the minor to the district (city) court at the place of residence (location) of the child, with the exception of cases under the jurisdiction of district (city) courts located within the city of republican significance and the capital, regional centers. Such a petition from the legal representatives of a minor may be filed initially simultaneously with the filing of a claim to the appropriate court at the child's place of residence (location), or a petition may be filed to transfer the case to the district (city) court at the child's place of residence (location) before the case is prepared for trial.
Preparation of the case for trial.
When accepting an application, it should be borne in mind that the applicant is exempt from paying court costs related to the consideration of the case of placing a minor in a special educational organization for children with deviant behavior or an organization with a special regime of detention.
The idea of sending a minor to an organization with a special regime of detention is sent by the internal affairs bodies to the court within thirty days from the date of the decision to terminate the criminal case against the said minor.
In exceptional cases, this period may be extended up to thirty days on the basis of a resolution of the internal affairs bodies or the prosecutor.
The materials are submitted to the minor and his legal representatives for review before they are sent to the court.
Interested persons make a corresponding entry in the submitted material about familiarization with the specified materials.
Definition of the legal relations of the parties and the laws that should be followed.
In accordance with paragraph 1 of article 13 of the Law "On the Prevention of Juvenile Delinquency and the Prevention of Child neglect and Homelessness", special educational organizations are educational or curative institutions and are established to provide education, training and social rehabilitation of minors aged eleven to eighteen years who systematically commit offenses involving administrative measures. people who maliciously avoid receiving primary, basic secondary, and general secondary education, systematically committing unauthorized departures from the family and children's educational institutions, committing other antisocial acts.
In accordance with the norms of the United Nations Convention on the Rights of the Child, the State must provide the child with the protection and care necessary for his well-being (paragraph 2 of article 3 of the UN Convention on the Rights of the Child).
According to articles 10, 25 of the Law of the Republic of Kazakhstan "On the Rights of the Child", every child has the right to life, personal freedom, inviolability of dignity and privacy. The State ensures the personal integrity of the child and protects him. It is prohibited to separate a child from his parents against the will of the child, parents or legal representatives. The decision on separation is made only by the court in exceptional cases and only to the extent necessary for the protection of the child.
When considering the issue of sending minors who abuse alcoholic beverages, narcotic drugs and psychotropic substances and their analogues to special educational institutions, it is imperative to study the expediency of prescribing them a course of treatment for drug-related diseases.
A minor may be sent to a special educational institution for a period of one month to one year.
The period of stay of minors in special educational organizations, determined by the court, may be extended by the court at the location of the special educational organization only in the following cases::
1) the need for minors to complete general education or vocational training, but no more than before they reach the age of majority;
2) systematic commission of offenses involving administrative measures, malicious evasion from secondary education, unauthorized departures from special educational organizations, and other antisocial acts.
Educational organizations with a special regime of detention are educational or medical educational institutions and are created in order to provide special conditions for the upbringing, education and social rehabilitation of minors.
In accordance with the procedure provided for by the CPC, minors between the ages of eleven and eighteen who need special conditions of upbringing and education and require a special pedagogical approach are placed in educational institutions with a special regime of detention, in cases where, after a decision has been issued against them to terminate the pre-trial investigation due to the failure to reach the age from which they criminal liability, committed a socially dangerous act again;
Pupils of a special educational organization may also be sent to an educational organization with a special regime of detention if they commit a socially dangerous act containing signs of a crime before reaching the age from which criminal responsibility begins.
A minor may be sent to an educational institution with a special regime of detention for a period of six months to two years.
Persons involved in the case.
The applicant:
- the body performing the functions of guardianship or guardianship, or the body of internal affairs when placing a minor in a special educational organization for children with deviant behavior;
- the internal affairs body when placing a minor in a special organization with a special regime of detention (Article 332 of the Code);
- the minor, his legal representatives, representatives of the body performing the functions of guardianship or guardianship, as well as other persons at the discretion of the court.
The range of persons who may be involved in the case is not fully defined by law. The court should be guided by the interests of the minor and involve persons who can contribute to a comprehensive review of the case.
For example, in some cases, the courts summoned classroom teachers, other teachers, employees of the Central School of Education (Juvenile Adaptation Centers), in cases where children were placed in the Central School before deciding whether to send them to special educational organizations, district police inspectors for minors of internal affairs bodies and other persons who can provide explanations on the specifics of psychology and behavior of a minor.
When considering the issue of sending minors to special educational institutions, the participation of a prosecutor is mandatory (part two of Article 333 of the CPC).
Facts to be established and proved. Evidence and proof.
Sending children to special educational institutions is an extreme measure that is applied by the courts only in cases where there are no opportunities to apply alternative types of educational influence to children at risk of being sent to such institutions.
According to paragraph 79 of the Model Rules, educational organizations are educational or medical educational institutions and are established for the purpose of providing education, training and social rehabilitation of minors aged eleven to eighteen years.:
1) systematically committing offenses involving administrative measures;
2) those who maliciously avoid receiving primary, basic secondary and general secondary education;
3) systematically committing unauthorized departures from their families and children's educational institutions;
4) underage suspects who, due to the living conditions and upbringing, cannot be left in their former place of residence for the period of the criminal case proceedings;
5) committing other antisocial acts.
Paragraph 94 of the Model Rules stipulates that educational organizations with a special regime of detention are educational or medical educational institutions and are created in order to provide special conditions for the upbringing, education and social rehabilitation of minors aged eleven to eighteen years.:
1) those who have committed socially dangerous acts containing signs of a criminal offense;
2) released from criminal liability;
3) minor suspects who, due to the living conditions and upbringing, cannot be left in their former place of residence for the period of the criminal case proceedings.
The main tasks of educational organizations with a special maintenance regime are similar to the main tasks of educational organizations for children with deviant behavior.
It should be borne in mind that minors with diseases that prevent their maintenance and education in these institutions, according to the List of Diseases, cannot be placed in special educational organizations.
The list of the main documents attached to the statement of claim
In accordance with the requirements of Article 149 of the CPC, including:
1) birth certificates of children;
2) documents containing information about the parents, and in the case of a minor orphan or left without parental care, documents confirming his status;
3) medical documents confirming that the minor does not have a medical condition that prevents his/her maintenance and education at the specified educational organization;
4) underage suspects who, due to the living conditions and upbringing, cannot be left in their former place of residence for the period of the criminal case proceedings;
5) committing other antisocial acts.
Paragraph 94 of the Model Rules stipulates that educational organizations with a special regime of detention are educational or medical educational institutions and are created in order to provide special conditions for the upbringing, education and social rehabilitation of minors aged eleven to eighteen years.:
1) those who have committed socially dangerous acts containing signs of a criminal offense;
2) released from criminal liability;
3) minor suspects who, due to the living conditions and upbringing, cannot be left in their former place of residence for the period of the criminal case proceedings.
The main tasks of educational organizations with a special content regime are similar to the main tasks of educational organizations for children with deviant behavior.
It should be borne in mind that minors with diseases that prevent their maintenance and education in these institutions, according to the List of Diseases, cannot be placed in special educational organizations.
The list of the main documents attached to the statement of claim
In accordance with the requirements of Article 149 of the CPC, including:
1) birth certificates of children;
2) documents containing information about the parents, and in the case of a minor orphan or left without parental care, documents confirming his status;
3) medical documents confirming that the minor does not have a medical condition that prevents his/her maintenance and education at the specified educational organization;
4) documents drawn up by educational authorities and internal affairs bodies (certificates from the place of study, place of residence, characteristics, explanatory notes, reports, protocols, acts, regulations of internal affairs bodies and others) confirming the systematic commission of offenses involving administrative measures; malicious evasion from obtaining primary, basic secondary and general secondary education; systematic commission of unauthorized departures from the family and children's educational institutions;
5) resolution (submission) of the Commission on Juvenile Affairs and Protection of their Rights.
Note: The Commission on Juvenile Affairs and Protection of Their Rights is a permanent collegial body that coordinates the activities of government agencies and institutions in the field of crime prevention, neglect and homelessness among minors, protection of their rights and legitimate interests. It operates on the basis of the Model Regulation on the Commission for Juvenile Affairs and Protection of Their Rights, approved by Resolution No. 789 of the Government of the Republic of Kazakhstan dated June 11, 2001
Laws to be applied in the consideration and resolution of cases
The Constitution.
The Code "On Marriage (Matrimony) and the Family" (hereinafter referred to as the Code).
Laws:
- dated August 8, 2002 No. 345-II "On the rights of the child in the Republic of Kazakhstan";
- No. 591-II dated July 9, 2004 "On the prevention of juvenile delinquency and the prevention of child neglect and homelessness."
Law No. 91-III of November 28, 2005 "On Ratification of the International Covenant on Civil and Political Rights" (adopted by the United Nations General Assembly on December 16, 1966).
Resolution of the Supreme Council of June 8, 1994 No. 77-XIII "On Ratification of the Convention on the Rights of the Child" (adopted by the United Nations General Assembly on November 20, 1989).
Resolution of the Government of the Republic of Kazakhstan dated June 13, 2005 No. 592 "On approval of the list of diseases that prevent the maintenance and education of minors in special educational institutions and educational institutions with a special regime of detention" (hereinafter – the List of diseases).
Order of the Minister of Education and Science of the Republic of Kazakhstan dated September 17, 2013 No. 375 "On approval of the Standard Rules for the activities of educational organizations on the conditions of organization of training" (hereinafter referred to as the Standard Rules). Declaration of the Rights of the Child (adopted by resolution 1386 (XIV) of the United Nations General Assembly on November 20, 1959).
Note: The Declaration of the Rights of the Child has not been ratified by Kazakhstan, but its provisions are included in the Convention on the Rights of the Child (preamble)
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