Peculiarities of juveniles' release from criminal responsibility
Table of contents: The Kazakh-American Free University Academic Journal №4 - 2012
Author: Orsaeva Raissa, East Kazakhstan State University in honor of S. Amanzholov, Kazakhstan
One of the essential issues of contemporary legal literature is a
problem of juveniles' release from criminal responsibility and punishment for a
There are plenty of factors affecting establishment of
responsibility under criminal law. However, the most important among them are
age specific and psychological traits of juvenile, thus, it is rightful that
criminal legislation determined a special (VI) Section of criminal juveniles'
In the first instance, Criminal Code of the Republic of Kazakhstan defined age for criminal responsibility. Juveniles covered by the Articles of the
said Section are those who at the time of commission of the criminal offence
has attained fourteen years of age and has not attained eighteen years of age
(Article 78, part 1). A person is considered to attain definite age in the day
following his/her birthday rather than in his/her birthday.
In considering problems of subject of crime it is specified that in
general, age for criminal responsibility is sixteen as defined by the law.
Nevertheless, in some cases involving a serious crime, criminal responsibility
is imposed to persons of fourteen and elder.
Along with that, part 3 of Article 15 of Criminal Code of the
Republic of Kazakhstan alerts that if a juvenile attained the age of criminal
discretion but due to disadvantage of mental development not related to psychic
disorder at the moment of minor crime commission could not fully realize nature
and social danger of his/her actions (omissions) or control them, he/she is not
subject to criminal responsibility .
Criminal Code of the Republic of Kazakhstan in terms of sanctions
emphasizes two peculiarities with regards to juveniles. The first is not all
sanctions are imposed to juvenile offenders. Thus, Article 79 of Criminal Code
of the Republic of Kazakhstan states punishments that can be imposed to
juvenile offenders are a fine, deprivation of right to conduct definite
activities, community service, correctional labor, restriction and deprivation
of liberty. The second feature of juvenile criminal sanctions consists in the
fact that abovementioned punishments by themselves with regards to juvenile
offenders are limited.
As a general rule, criminal responsibility is implemented as a
sanction the court imposes to persons found guilty in a crime. However, in a
number of cases the purpose of crime control can be achieved without criminal
prosecution of persons found guilty in a crime or without actual service of
sentence in case of their conviction, or with early relief from punishment or
substitution of unserved term to a different, milder sentence.
The criminal sentences are not aimed at requital (talion) towards a
criminal. Its main mission is to correct, reform a lawbreaker, prevent him/her
from committing new crimes. If this humane purpose requires no administration
of rigid legal measures, the law stipulates possibility of a convict's sentence
mitigation down to absolute relief from punishment. The relief from punishment
refers to state waiver to administer sanctions stipulated by criminal law to a
Reasons for such relief may be different. Particularly, it is
allowed if the convict was reeducated and reformed, and due to this, punishment
purposes can be achieved without its actual execution; or if there are other
facts bearing evidence that sentence administration is inappropriate (e.g., a
Convict's relief of serving punishment as well as its mitigation by
means of oblivion or free pardon may be administered by court only in those
cases and under those procedures that are stipulated by the law.
Legal nature of release from criminal responsibility is closely
related to criminal responsibility itself.
Thus, on the one hand, theoretical solution of the issue on concept,
essence and content of criminal responsibility serves as a basis for solution
of its release nature issue. On the other hand, it is legislative solution of
issues on release from criminal responsibility that material based on which we
can learn the law-maker's opinion on content of criminal responsibility and
stages of its implementation.
Absence of shared vision of criminal responsibility and of its
essence is the bottleneck in the process of learning legal nature of release
from criminal responsibility.
There are two main tendencies in this problem solution. The
advocates of the first point of view solve this problem by means of
identification of criminal responsibility and punishment and, correspondingly,
identification of release from criminal responsibility and relief from
punishment. The second point of view is based on the concepts of both criminal
responsibility and other unfavorable consequences stipulated by the law for a
person who committed a crime. So, release from criminal responsibility is not
limited to relief from punishment but involves relief from other unfavorable
consequences such as disapproval .
There exist many advocates of both points of view. Such scholars as
Y. Kairzhanov, U. Dzhekebayev believe 'criminal responsibility is an obligation
of a person found guilty to undergo all unfavorable consequences of the
committed crime as stipulated by the law' [5,6], whereas others (V.
Kudryavtsev, I. Galperin) adhere to a different statement - criminal responsibility
is suffering of punishment.
We hold to the first vision, i.e. we believe criminal responsibility
is not limited to sole suffering of punishment.
Firstly, if we accept other point of view then we will have to
acknowledge criminal law distinguishes concepts of release from criminal
responsibility and relief from punishment but this distinction is groundless.
Secondly, then we will have to acknowledge that the stage where
release from criminal responsibility takes place is of no importance.
Nevertheless, according to criminal and criminal procedural laws there are
grounds to claim that legal effect and legal consequence are by no means equal
in release from criminal responsibility prior to naming a person as convict,
after naming him/her as convict, prior to trial or during trial but prior to
rendering judgment of conviction, during relief from sentence serving in case
of conviction and during relief from further sentence serving. Volume of
enforcement measures administered to a person is different in different cases.
Thirdly, relief from suffering punishment is possible exclusively in
the case when a person has already been suffering it, punishment has been
imposed and is under execution. Here we should speak about cases where a person
convicted to imprisonment has already been imprisoned.
Therefore, we are of the opinion that release from criminal
responsibility is relief from obligation to suffer a punishment rather than
relief from a punishment suffering itself.
One can object saying that a person found guilty but not brought to
criminal responsibility bears no unfavorable consequences except for fear of
possible requital and that such state of things undermines the significance of
obligation to answer for a crime.
However, we believe that this obligation should not be considered
only in an abnormal variant when a person found guilty flows from prosecution.
Basically, this obligation in regular case becomes a punishment suffering. And
this process is nothing but development and satisfaction of an obligation to
Therefore, obligation to answer for one's actions committed should
be satisfied and the court is designated for this; the situations when the
court fails to bring a criminal to responsibility undermine its authority but
not authority of the criminal law.
What does 'relief from responsibility' mean? The word 'relief'
implies some kind of existing abridgements. Release from criminal
responsibility is applicable solely to a person who committed a crime and
responsible to answer for it. Then relief from obligations means that the
person is discharged from the obligations imposed earlier. Responsibility means
an obligation, liability to answer for something.
If a person is not responsible to answer then he/she needs no relief
from responsibility. If a person committed no criminal acts, there is no need
to discharge him/her from criminal responsibility. If this is the case, it is
better to say 'a person is not subject to criminal responsibility".
Consequently, the person who committed a crime is subject to criminal
responsibility, and the one who did not commit a crime is not subject to it.
Some scholars (V. Filimonov, S. Kelina) emphasize that in order to
discharge a person from criminal responsibility it is necessary to prove nature
of crimes. According to V.Filimonov, 'existence of various types of release
from criminal responsibility in our legislation does not mean at all that in
case of implementation of at least some of them there are no grounds for
criminal responsibility. On the contrary, their existence is an evidence of the
fact that there were grounds for this. Should there were no grounds to bring a
person to criminal responsibility, the issue of relief from such responsibility
by itself would be inappropriate, since we raise no question of release from
criminal responsibility in case of justifiable defense or extreme necessity. We
do not raise it due to the fact that in such cases there are no grounds for
criminal responsibility or in other words there are no elements of a crime'.
A juvenile who committed a crime of minor or average gravity for the
first time can be discharged from criminal responsibility, if it is
acknowledged that his/her correction can be achieved by means of educational
Criminal Code of the Republic of Kazakhstan stipulated the types of
educational enforcement as follows:
b) placing under increased supervision of parents or persons
replacing them or an authorized state body;
c) imposing obligation to compensate for the damage caused;
d) abridging leisure time and imposing special requirements to the
behavior of the juvenile.
e) placing the person in specially designated institution or
educational clinic for juveniles.
Placing under increased supervision consists in imposing on parents
or persons replacing them or authorized state body an obligation of educational
impact on a juvenile and increased supervision of his behavior. While
implementing this enforcement, parents have abridgement in the ways to execute
this obligation; a parent's obligation is specified and he/she instructed to,
for example, control leisure time of the child, not to permit him/her to leave
house after definite hour, etc. This measure serves as a definite caution for
parents and other persons on possible bringing of their child (person under
care) to responsibility in order to impel them to more active educational
activity . When parents and other persons do not agree to assume this
obligation of increased supervision or are not capable to perform this
obligation properly, a authorized state body is preferable.
Obligation to compensate for the damage caused is imposed with due
consideration of property status and labor skills of the juvenile. Civil
legislation stipulates property compensation of moral harm, however in some
cases when an injured person agrees, moral damage may be compensated by
Abridgement of leisure time and special requirements to a juvenile's
behavior may involve prohibition to visit definite places, enjoy some types of
leisure activities, including those connected to driving motor vehicles, spend
limited time outside the house after definite hours, visit some distant
locations without permission issued by an authorized state body. A juvenile may
be required to return to a general education institution or obtain employment
from an authorized state body. Some other requirements necessary for correction
of the juvenile may be imposed to him/her. These requirements should be
expedient, not cruel, should not hurt the juvenile and should not be aimed at
abasement of the juvenile's dignity.
Since educational enforcements are not divided into principal and
supplementary, several educational measures may be imposed contemporaneously.
System of educational enforcements stipulated by law provides the
basis for release of juveniles from criminal responsibility and punishment and
their substitution by educational enforcement. Educational enforcement actions
may be based on the juvenile's commission of crime of minor and average gravity
for the first time, possibility to achieve correction aims by means of an
As a general rule, a crime committed by a person can be established
only by a court verdict that took legal effect. Since in this case exception
from general principle is allowed, a particular emphasis is given to
establishment of a crime. Such measure is inappropriate for a person who did
not admit his/her guilt in the committed crime, though it should be taken into
account that admission of offence as any other evidence should be reviewed with
due attention. A juvenile may have grounded reasons for self-inculpation (for
instance, fear of criminal sanction or of a real criminal).
Possibility of a juvenile's correction can be established on the
basis of nature and danger level of the definite crime, personality of a person
found guilty, conditions of his/her life and upbringing and other facts of the
Criminal Code of the Republic of Kazakhstan stipulates regulation on
a juvenile's relief from punishment with their substitution by educational
Also Criminal Code of the Republic of Kazakhstan stipulates
possibility of placing the juvenile in specially designated institution or
educational clinic for juveniles. This measure is also an educational
enforcement. Criminal law in Article 83 stipulates special procedure and
grounds for administration of this measure.
Lodgment in specially designated institutions and educational
clinics may be terminated before the end of the term (maximum punishment term),
when the person reaches majority provided that according to the statement of an
authorized state body enforcing correction, the juvenile does not need more
corrective measures for his/her correction. Prolongation of the term of the
juvenile's lodgment in specially designated institution or clinic is allowed
exceptionally when there is need to finish educational or professional training
If a person committed a crime and was discharged from punishment
under Criminal Code of the Republic of Kazakhstan, this does not involve
criminal record and it can be unconsidered in awarding a punishment and case
classification in the event of a new crime, but under the Criminal Code the
fact of a crime commission after relief from punishment is a circumstance that
characterizes personality of the criminal which is considered in both awarding
punishment and deciding of possibility and type of the person's release from
criminal responsibility or punishment.
Both juvenile-specialized types of release from criminal
responsibility and punishment and general ones are applicable to juvenile
A juvenile may be discharged from criminal responsibility under
general regulations due to active repentance, reconciliation with an injured
person (due to change of circumstance, expiry of limitation periods).
A juvenile may be discharged from punishment under general
regulations on conditional sentences and relief from punishment due to disease.
It is reasonable to award conditional sentences to persons of
majority age or those close to them in age who committed a crime prior to
reaching majority provided that the court will decide that convict's correction
can be realized without service of sentence and will administer punishment in
the form of imprisonment or correctional labor.
Criminal Code of the Republic of Kazakhstan states shortened terms
after serving which a juvenile may be convicted on parole from serving a
sentence. Parole from serving a sentence may be administered to juveniles
sentenced to correctional labor or imprisonment after actual service of:
a) minimum one third of the term of the sentence administered by the
court for a crime of minor or average gravity;
b) minimum half of the term of the sentence administered by the
court for a serious crime;
c) minimum two thirds the term of the sentence administered by the
court for a high crime.
Juveniles are subject to general regulations on grounds for parole
stipulated by Criminal Code of the Republic of Kazakhstan (Criminal Code of the
Republic of Kazakhstan goes as follows: 'A person serving correctional labor,
limitation in military service, restriction of liberty, lodgment in a
disciplinary military unit or imprisonment can be discharged on a parole
provided that the court acknowledges that for his/her correction he/she does
not need to serve full term of the punishment administered by the court.  If
this is the case, a person can be fully or partialy discharged from serving
additional punishment type.'), to placing definite duties on a convict on
parole, to obligatory minimal service term and to parole for the persons who
were on parole earlier (Paragraph b of Part 3), to behavior control of a
convict on parole, cancellation of parole and administration of a sentence in
the event of a new crime commission by a convict on parole during an unserved
part of punishment.
According to Criminal Code of the Republic of Kazakhstan, limitation
period in case of a juvenile's release from criminal responsibility or relief
from punishment is reduced by half. Since no sentences in the form of death
penalty and life imprisonment are administered to juveniles, maximum limitation
term of a juvenile's criminal responsibility is 7.5 years. Expiry of limitation
terms stipulated in the abovementioned article with regards to a juvenile make
no hinders to initiation of a criminal case due to crime commission and
performance of actions necessary for establishing the truth, particularly, possible
participation of mature persons in the crime.
Shortened limitation periods stipulated by Criminal Code of the Republic of Kazakhstan may be applied when there are grounds provided for persons of 18
to 20 years of age. If this is the case, the court should take under
deliberation the fact that the crime is committed by a person who is mentally
and socially immature due to his/her age.
While awarding punishment to a juvenile, in addition to universal
circumstances mitigating criminal responsibility, conditions of life and
upbringing, mental development level, other personal traits as well as
influence of other older persons are considered.
Juvenility as a mitigating circumstance is considered together with
other mitigating and aggravating circumstances.
Moreover, juvenile convicted for the crime of minor or average
gravity for the first time may be discharged from punishment by court provided
that it is established that his/her correction is achievable by means of
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(obshh.ch.).- Almaty,20067- s. 233 / Y. Kairzhanov.
Criminal Law of the Republic of Kazakhstan (general part). -
Almaty, 20067 - p.233 (in Russian)
2. Gal'perin I.M. Nakazanie: social'nye funkcii, praktika primenenija:
- M., 1986. -s.42 / I. Galperin.
Punishment: Social Functions, Practice of Application: - Moscow, 1986. - p.42 (in Russian)
3. Kudrjavcev V.N. Genezis prestuplenija. Opyt kriminologicheskogo modelirovanija.
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Genesis of Crime. Experience of Criminological Modeling. - Moscow, 1998. - p. 21 (in Russian)
4. Kelina S.G. Problemy sovershenstvovanija ugolovnogo zakona - M.,
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- Moscow, 1984. - p. 149 (in Russian)
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(sravnit. komment. k knige Dzh. Fletchera i A.V. Naumova "Osnovnye koncepcii sovremennogo
ugolovnogo prava") - Almaty, 2001. - s. 35 / U.Dzhekebayev. Main Principles of Criminal Law of the Republic of Kazakhstan: (comparative commentary to the book of J. Fletcher and A. Naumov. Basic Conceptions of Contemporary Penal Law) - Almaty, 2001. - p. 35
6.Kajrzhanov E.I. Nekotorye voprosy ugolovnoj politiki i nakazanija po
zakonodatel'stvu RK.- Almaty, 2005. - s. 52 / E. Kairzhanov.
Some Issues of Criminal Policy and Punishment under Legislation of the Republic of Kazakhstan. - Almaty, 2005. - p.52 (in Russian)
7.Filimonov V.D. Lichnost' prestupnika. - M.,1986. - s. 69 / V. Filimonov. Personality
of a Criminal. - Moscow, 1986. - p. 69 (in Russian)
Table of contents: The Kazakh-American Free University Academic Journal №4 - 2012