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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF TURKMENISTAN

of October 2, 1997 No. 10

About practice of application by courts of the legislation on cases on crimes of minors and on their involvement in criminal and other antisocial activities

Having discussed court practice on cases on crimes of minors and on their involvement in criminal and other antisocial activities, the Plenum of the Supreme Court of Turkmenistan notes that courts generally correctly apply the legislation by hearing of cases of this category.

At the same time, in work of the courts there are also essential shortcomings reducing efficiency of fight against crime among minors. Courts not always fully fulfill requirements of the procedural law, establishing conditions and procedure for hearing of cases, separate courts sometimes do not observe the principle of individualization in case of purpose of measure of punishment to guilty persons, quite often underestimate role of the public in correction and re-education of minor offenders, disregard cases when bodies of pretrial investigation do not apply the law on criminal liability of adults for involvement of teenagers in criminal or other antisocial activities. Not on all cases the reasons become clear, and the measures provided by the law to their elimination are not taken.

For the purpose of elimination of noted shortcomings, ensuring uniform application by courts of the legislation providing responsibility on cases on crimes of minors and on their involvement in criminal and other antisocial activities, the Plenum of the Supreme Court of Turkmenistan

Decides:

1. Draw the attention of courts to need of ensuring such level of judicial activities which as much as possible would promote the successful solution of tasks of the prevention and eradication of youthful crime, their education in the spirit of steady execution of requirements of the laws.

For this purpose courts of Turkmenistan shall observe strictly requirements of the law concerning legal proceedings for minors to constantly increase quality of consideration of these cases, culture and educational impact of legal procedures, to try to obtain efficiency of scheduled maintenance.

2. Indicate to courts the need of unconditional fulfillment of requirements of the law owing to which the question of the bringing of the person accused to court for the crimes committed by it before achievement of 18 years is allowed by court in administrative meeting. Such procedure shall be observed irrespective of whether the person accused of age of majority by the time of the bringing to its court reached. It is obligatory also in cases when person is accused of crimes, one of which is made by it aged up to 18 years, and another - after attainment of majority. Not observance of this requirement is fundamental breach of the criminal procedure law.

Whether the court in administrative meeting along with other questions specified in Art. 233 to the Code of Criminal Procedure of Turkmenistan shall pay attention are available in the matter of the proof, sufficient for its consideration in judicial session whether all rights of the minor person accused guaranteed by the laws in case of production of pretrial investigation are observed, whether reasonably to it it is chosen to measure of restraint - detention because such measure of restraint can be applied to minors only in exceptional cases when it is caused by weight of the crime committed by it and in the presence of the bases specified in the station of the Art. 91, of 96 Codes of Criminal Procedure of Turkmenistan.

In case of not respect for consequence of these requirements and the unreasonable conclusion of the minor into custody the court shall change or cancel this measure of restraint. 3. Courts shall respect strictly the rules of the penal procedural legislation guaranteeing to the minor person accused right of defense. Not observance of the requirement of the law on the admission of the defender for minors from the moment of interrogation as the suspect, and also about its obligatory participation in case of legal proceedings shall be considered owing to Art. 356 of the Code of Criminal Procedure of Turkmenistan as fundamental breach of the criminal procedure legislation.

Proceeding from nature of the committed crime, the fact of the case and the identity of the defendant, the court can recognize obligatory participation of the defender in the matter of person who committed crime at minor age, but by the time of the legal proceedings which reached 18 years

4. According to Art. 2551 of the Code of Criminal Procedure of Turkmenistan courts shall about time and the place of consideration of the case to inform on the minor the companies, organizations and the organizations in which the minor, the commission and inspectorate for cases of minors studied and worked. In case of need the court has the right to cause in judicial session of representatives of these organizations, in also representatives of public organizations on place of employment of parents, guardian or defendant's custodian.

From the leave of court representatives of the specified organizations can participate in research of proofs. In necessary cases they can be interrogated as witnesses about what determination is taken out. Not the appearance of the specified representatives does not interfere with hearing of the case if the court does not find their presence necessary.

5. The court shall take measures to exact establishment of age (number, month, year of birth) of the minor.

At the same time person is considered reached the corresponding age, not at birthday, and since next days - after days on which birth date falls. In case of establishment of age forensic medical examination by birthday of the defendant should be considered the last day of that of year which is designated by experts, and in case of determination of age the minimum and maximum number of years the court should proceed from the minimum age of such person offered by examination.

6. In the presence of the data testimonial of intellectual backwardness of the minor defendant, courts according to requirements of the law shall find out degree of intellectual backwardness of the minor whether he could understand completely value of the actions and in what measure to direct them. In necessary cases examination by specialists in the field of children's and youthful psychology (the psychologist, the teacher) shall be made for establishment of these circumstances owing to Art. 75 of the Code of Criminal Procedure of Turkmenistan on case or the specified questions can be raised on permission of the expert-psikhiatora.

Taking into account degree of intellectual backwardness the minor who for the first time committed crime of small weight can be exempted from criminal liability if it is acknowledged that its correction can be reached by application of enforcement powers of educational impact.

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