Minors as specific group in criminal law

Involvement and participation of young offenders to the criminal sphere always was particularly problem.  It was the reason of many discussions nowadays and . We offer to sort and note this category of minors in special point.


Minors as subjects of case in point are allocated with specific signs that defines need of consideration for Criminal law them in separate category. The author noticed regularity according to which, the age of the subject who made a criminal offense directly influences probability of commission of a recurrence by it. That is in other words, the age  of the offender is less, the probability is higher that his behavior will remain the same when the subject matures.

Having begun commission of crimes at teenage age, many people cannot refuse it any more: the criminal behavior, communication with other criminals, isolation from positive social groups, first of all from a family and labor collectives, become a habitual and unique conduct of life. So take a way of criminal professionalism - getting of means of livelihood only or mainly by commission of crimes. Some become members of criminal societies, others break the criminal law alone, sometimes becoming an inveterate drunkard and falling by a bottom [1].

Astemirov Z. A.: «… the excessive categoriality of judgments, irascibility, unbalance, inability to assess a situation taking into account all circumstances, etc. are very characteristic of such age. These age features caused establishment concerning responsibility of minors of a number of exceptions and additions in comparison with the general rules of a criminal responsibility …» [2, 20].

The minor as the subject of Criminal law has the specific characteristic, and as a result specifics of consideration and its relation as to the offender. That the legislator, establishing a circle of offenses on which responsibility comes from fourteen-year age, is guided by the interconnected criteria in total demonstrates that fact that already to it. It is connected, first of all, with the fact that the  considered     subject     possesses     that     extent  of intellectual and strong-willed development, expressed in ability of understanding of extent of public and dangerous act, and also to direct it.

The author completely agrees with B. V. Zdravomyslov who claims that the criminal law connects responsibility with ability of the person who committed a crime to give the report in the actions and to direct them, and such ability only people have. At criminal prosecution of legal entities of the purpose of punishment (correction of the convict and the prevention of commission of new crimes by it) would be unattainable as criminal sanction is  intended to influence only people [3, 204].

At the same time Yakubov A. E. writes that at the heart of determination of age on reaching  which the person can be brought to trial there is level of consciousness of the minor, his ability to realize the events and in compliance with it consciously to work. Juvenile persons, cannot be subjects of a crime as owing to the age have no opportunity adequately  to realize the actions and to direct the acts [4, 19]. Orymbayev R. says that Ability to realize danger of the behavior develops gradually, as a result of education and vital observations. To a certain age at the teenager the life experience is already accumulated, there is an opportunity to realize the  acts and it is more or less correct to choose options of the behavior [5, 22].

At the same time Trakhterov V. S. connects the matter about minor the subject of Criminal law with the fact that he is a public being, the subject of the public relations not in itself, separately from society and as the specific member of society... Therefore properties, inherent persons, cannot be congenital, and, eventually, are defined by material living conditions [49, 44]. The excessive categoriality of judgments, irascibility, unbalance, inability to assess     a     situation     taking     into     account   all circumstances, etc. are very characteristic of such age. These age features caused establishment concerning responsibility of minors of a number of exceptions and additions in comparison with the general rules of a criminal responsibility [6].

It is difficult not to agree with Vladimirovy VA. which writes that the teenager at the age of 14 — 15 years of cm is capable to distinguish accurately mischief, prank, bravado from simple hooliganism. Strong language in the public place, violent acts in a fight, characteristic of simple hooliganism, quite  often at teenagers happen in the way of manifestation of, the self-affirmation, peculiar to children of awkward age [7, 40].

The persons who committed a crime aged from fourteen up to sixteen years are subject to criminal liability only  for the  crimes  specified in the 2 of Art. 15 of the Criminal Code of Kazakhstan. Among some part of lawyers there is an opinion that a criminal responsibility from 14 years is established in the law for the most serious crimes what about several bases cannot agree in any way with. Really, a considerable part of the Criminal Codes of Kazakhstan of crimes listed in the p. 2 of Art. 15 are heavy and especially heavy. But not it was considered by the legislator at a formulation of the criminal precept of law. First, if a priority role was played by weight of crimes, then first of all in the p. 2 of Art. 15 of the Criminal Code of Kazakhstan gangsterism (Art. 237 of the Criminal Code of Kazakhstan), mass riots (Art. 241 of the Criminal Code of Kazakhstan), crimes against bases of the constitutional system would be specified, however responsibility for the listed acts comes since sixteen years. [8, 41]. The criminal, as well as any other person, represents the personality. Otherwise also cannot be. Any person, including the criminal, it is impossible to present without the relations connecting him with other people. As if positively or negatively the person was characterized, he anyway remains the personality. [9, 30].

Follows from all this that minors as the subject of a criminal offense has a number of features that causes the necessity in allocation of the last in a special circle of subjects. This concept is not any, it is defined with historical experience of criminal and legal regulation, this pedagogies, medicine, psychology and biology about stages of formation of human mentality. Level of consciousness of the person, its ability to realize the events, and  also public danger of the made actions (inaction) and to direct them is the cornerstone of determination of age bracket. To a certain age at minors the life experience which allows them to correlate the actions (inaction) to the standard norms is formed. If the minor was deprived of appropriate training and education, then it is much more difficult for him, than to his peers to be guided in life. Insufficient understanding of the actions (inaction), and also weakness of strong-willed process happens because mental development of such teenagers lags behind their actual age.

This concept is traced in many  other theories. So, K. E. Igoshev, claims that the nervous system of the teenager still is at a formation stage. Therefore at teenagers a certain instability in elaboration of brake reactions, the weakened control of a cerebral cortex over subcrustal is observed (in comparison with adults), awareness of the importance of dictionary irritants (the second alarm system) and other is not completely developed. These features influence psychology of the teenager, his behavior. Motives of activity of teenagers often have the nature of affects, emotional flashes. Line of conduct is unstable, acts quite often uncontrollable consciousness (impulsive), actions often inadvertent [10, 15]. At the same time E. A. Sarkisova writes that also the accounting of extent of its mental development is of great importance for an assessment of behavior of the minor. In spite of the fact that the teenager can be responsible under the criminal law on reaching 16 years, and for a number of crimes — from 14 years, the level of its mental development  can be that that he is fully not able to realize value and socially dangerous nature of the made act or to control the behavior. In such cases in the presence of painful mental disturbance or intellectual backwardness the minor can be recognized is reduced responsible that is the circumstance softening responsibility [11, 454].

This paradigm found the reflection not only in the legal doctrine, but also in the law as the standard established act created at will of the state. First of all, this approach is observed in the Standard resolution of the Supreme Court of the Republic of Kazakhstan (further – NPVS RK) of April 11, 2002  N 6 «About court practice on cases of crimes of minors and of their involvement in criminal and other antisocial activity» (further – the Resolution RK). So according to item 3 of the Resolution RK: «... for the correct solution of questions of involvement of the minor to a criminal responsibility and on appointment to it punishments essential value has establishment of the circumstances provided by articles 117 and 421 Codes of Criminal Procedure. It is also necessary to find out individual and personal properties of the minor as suggestibility, excitability, dependence, tendency to bravado, leadership, imagination and others. For this purpose it is necessary to interrogate persons on whose education there is a minor, and other persons, to claim the official documents concerning his health and intellectual development and also to investigate the personal papers (diaries, notes, letters, audio recordings, etc.) belonging to it.

.»; item 17: «... at assignment of punishment by the minor courts are obliged to consider besides the circumstances specified in article 46  CC conditions of their life and education (an unsuccessful situation in a family, rough, sometimes the cruel attitude towards teenagers from parents, close relatives, etc.), the level of mental development, feature of the personality (existence of mental disturbance, unbalance, irascibility, etc.), motives of commission of crimes (children's mischief, «for the company», envy, vindictiveness, etc.), influence on the teenager of seniors on age of persons...» [12].

Moreover. the world practice in essence recognizes minors as a separate circle of subjects of Criminal law that directly is reflected in the domestic right.

So according to item 1.4 of the Resolution of the UN: «... justice concerning minors has to be a component of process of national development of each country within comprehensive ensuring social justice for all minors, at the same time assisting thus protection of youth and maintenance of a peace order in society...»; item 26.1: «... the purpose of educational work with the minors which  are contained in correctional facilities is ensuring guardianship, protection, education and vocational training for the purpose of rendering the help to them for performance of a social and useful and fruitful  role in society...»; item 27.1; «... the minimum standard rules of the treatment of prisoners and the corresponding recommendations are used in process of their applicability to the treatment of minor offenders in correctional facilities, including those which are in custody waiting for the judgment. .» [13].

In comments to the Resolution of the UN it is said that the minimum standard rules are specially formulated so that they could be applied within various legal systems and at the same time establish some minimum standards in the treatment of minor offenders at any existing definition of the minor and at any system of the treatment of the minor offender. Rules in all cases have to be applied impartially and without any distinctions. The minimum limits of age of a criminal responsibility are very various depending on historical and cultural features. Use of modern approach consists in definition of ability of the child to transfer the moral and psychological aspects connected with a criminal responsibility, that is in definition of a possibility of involvement of the child, owing to specific features of his or her perception and understanding, to responsibility for obviously antisocial behavior. If the age limit of a criminal responsibility is set at too low level or not established at all, the concept of responsibility becomes senseless. In general there is a close interrelation between a concept of responsibility for an offense or criminal behavior and other  social rights and duties (such as marital status,  civil majority etc.) [14].

November 20, 1953. The declaration of the rights of the child is adopted by the United Nations General Assembly in which it already taking into account the principles enshrined in the Universal Declaration of Human Rights accepted in 1942 again is emphasized that the child has to be under all circumstances among those who the first receive protection and the help. In the Declaration need of every possible protection of all rights of the child which belong to him along with the rights granted to the adult [15, 444] is proclaimed. In too time the General  Assembly resolution of November 20,  1989 «Convention on the Rights of the Child» says that it in view of physical and intellectual immaturity of the minor, needs special protection and care. Existence of such various actions as leaving, the provision on guardianship and supervision, advisory services, purpose of a trial period, education, programs of training and vocational training and other forms of leaving replacing care in institutions for the purpose of providing such treatment of the child which would correspond to his welfare, and also its situation and character of a crime [16] is necessary.

The author considers that at the level of special criminal legal status it is possible to mark out criminal legal status of the minor as subject of  a crime and as victim from a crime. Besides, the minor who made socially dangerous act before age of a criminal responsibility or in a condition of age diminished responsibility has special criminal legal status. But that this fight was not in single, it is necessary to define the prime causes, sources of this most terrifying phenomenon - crime of minors. All above-mentioned finds the reflection in standards of the national right of Kazakhstan, first of all, it is expressed in the codified acts. Peculiar features of crime of minors also resulted the legislator in need of a careful regulation of the criminal responsibility of minors sometimes departing from the general rules and the beginnings of a criminal responsibility and punishment. The legislation prescribed special conditions of establishment of types punishments for minors, purposes by it of punishment, releases them from a criminal responsibility and punishment, calculation of limitation periods and repayment of a criminal record. So, The code of Criminal procedure of the Republic of Kazakhstan of July 4, 2014 notes No. 231-V (further – the Code of Criminal Procedure of RK) about allocation of minors in a special circle of subjects by providing separate articles by production of investigative actions (St. 215. Features of interrogation of the minor witness or victim;

Art. 371. Features of interrogation of the minor victim, witness, etc.); allocation of the separate section (Hl. 40. Production on cases of criminal offenses of minors). So RK tells Art. 471 of the Code of Criminal Procedure: «... by production of pre- judicial investigation and judicial proceedings, except the circumstances provided by article 113 of the present Code which are subject to proof for minors are subject to establishment:

  • age of the minor (number, month, year of birth);
  • living conditions  and  education  of  the minor;
  • extent of intellectual, strong-willed and mental development, feature of character and temperament, requirement and interests;
  • influence on the minor of adult persons and other minors...» [15].

At the same time the substantive law also allocates minors in separate group, and thus, provides a number of specific precepts of law on regulation of the relations with participation of minors. So, the Criminal Code of Kazakhstan of July 3, 2014 gives to No.   226-V   (further   –   the   Criminal   Code   of Kazakhstan) the separate section for the  minor subject of Criminal law (Section 6. Criminal responsibility of minors), including in a row main types of punishment for commission of a criminal offense, enforcement powers of educational influence (Art. 84 of the Criminal Code of Kazakhstan).

2 of Art. 80 of the Criminal Code of Kazakhstan: «... sentence can be imposed to the minors who made a criminal offense or enforcement powers of educational influence can be applied to them...» [17].

Allocation of features of a criminal responsibility of minors in the independent chapter means that are applied to these persons of norm on a criminal responsibility taking into account the special provisions provided in the present chapter. Introduction to the Criminal Code of Kazakhstan of such special provisions is caused by social and psychological features of persons, this age category.  It follows from this that criminal legal status of minors aged from 14 up to 18 years as subjects of a crime is characterized by presence at them of a significant amount of the rights providing special use of criminal liability, punishment, other measures of criminal and legal character or release from them. Presuming smaller degree of public danger of minors, the legislator puts them in a privileged position in comparison with adult subjects of a crime, giving the additional rights or significantly weakening for them the available right restrictions. Features of mentality of the minor and his social status assume features of the measures of criminal sanction applied to it: measures these softer, are more focused on educational influence and reflect living conditions of the minor in society.

Thus, standard fixing of specifics of consideration of criminal cases in the national right of Kazakhstan has the accurate and adjusted system of the mechanism of legal influence. I reflect world practice and rules of international law about minors  as about subjects criminal legal relations, the domestic right distinguished the last in a special  circle that allows to speak about specifics of these subjects. Actually, cases with participation of minors are considered in separate production, and also investigative actions with participation of the last are specific and have a number of separate distinctive requirements in comparison with other subjects. Along with it it comes also about involvement of additional participants not only lawsuit, but also the investigation in general (the teacher, the psychologist) and additional measures of legal protection of minors as subjects of the Criminal, criminal procedure law.

The author wants to note that the above- mentioned, first of all is connected, with the fact that the level of mental development of the teenager is connected with a condition of its intelligence, the character, feelings defining ability to operate the behavior, an opportunity to expect and correctly to estimate consequences of the actions and to plan them, it is correct to define the purposes and to try to obtain  them.  Other  features  of  the  personality  are defined as set of requirements, interests, the minor's views. In particular, it is necessary to estimate such lines of the personality as cruelty or ability to empathy, sympathy, egoism, an egocentrism or altruism, nervousness or restraint, external and internal control, existence of realistic vital plans, habits, skills. Clarification of the specified circumstances allows to define the teenager's relation to the committed crime, the reasons of its commission, accident it or regularity and  other factors which set allows court to define destiny of the minor correctly. Law-enforcement practice shows  that hearing of cases comes down quite often to the simplified procedure: the guilt is proved, to impose sentence. Load of judges, their low professional level, an accusatory bias, insufficient financing of the  courts - what only we did not hear excuses, and result the most large number of juvenile prisoners, a recurrence of crimes, professional

Actually, the criminal measures of legal influence for counteraction of crime specified in rules of law are the main. The author takes in attention that rise in crime made by minors, happens in many respects on influence of social stratification  of society, falling of living standards of a considerable part of the population, an aggravation of the international conflicts, favorable development of the family and marriage relations, growth of various manifestations of ill treatment of minors. In this situation social, economic and educational and preventive measures have paramount value.

The author did work on the analysis of the doctrine, and also the existing regulatory base regulating to some extent a legal status of minors as subjects of criminal legal relations, not only national right, but also standard of the international acts. The main theories and opinions of scientists on the considered subject were revealed, arguments and shortcomings on existing are provided, the vision on this problem is developed. From all this it is possible to tell with confidence that that questions of criminal liability of minors in Kazakhstan remain still poorly developed. If the general questions, in a varying degree, were considered in scientific literature, then the maintenance of separate parts of this subject was not a subject of a detailed special research of lawyers so far.

Features of a criminal responsibility of minors are defined not only by age and social and psychological conditions of formation of the personality, but also her criminological prerequisites and an assessment of the identity of the minor as criminal. The author did work with the purpose of definition of the existing problem, and also the offer of possible ways of overcoming.

According to the privies,

The author sees in the crime nature with participation of minors shortcomings of education  and influence of the environment. From there is a need for development of the social regulator which will be designed to act as the objective factor confronting criminal manifestations and promoting education    of    younger    generation,    instilling  of necessary sense of justice in it. At the same time criminological aspect of the question influences and cannot but influence character and volume of a criminal responsibility of minors. As the main determinants of criminal manifestations of minors are shortcomings of education and merge of the environment, society is forced to undertake or assign a certain share of responsibility it to small social groups and the particular persons who are not providing  due  education  or  exerted  direct negative impact, softening a criminal responsibility of offenders. From this it follows that the policy of the state has to be directed to solutions of the existing problem on decrease in crime with participation of minors. At the same time participation not only state and imperious educations, but also public and legal is important, including self-regulating institutes of civil society on impact on improvement of education and education of younger generation, its civil, labor and international formation.



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Year: 2017
City: Almaty