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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE REPUBLIC OF BELARUS

of June 28, 2002 No. 3

About court practice on cases on crimes of minors

(as amended on 31-03-2016)

For the purpose of the prevention of mistakes in case of production on cases on crimes of minors and explanation of the matters of argument which arose in court practice, the Plenum of the Supreme Court DECIDES:

1. Draw the attention of courts to need of improvement of quality of hearing of cases about crimes of minors. Production for this category shall be based on strict observance of requirements of the criminal and criminal procedure laws, as much as possible promote ensuring protection of the rights and legitimate interests of minors, purpose of just punishment, the prevention of new crimes.

2. To courts to mean that the procedure for production is determined by regulations of the criminal procedure law taking into account the features specified in the relevant articles and Chapter 45 of the Code of Criminal Procedure by cases on crimes of minors.

3. Courts need to consider that according to the p. 2 of Art. 181 of the Code of Criminal Procedure on all cases on the crimes committed by persons aged up to eighteen years irrespective of attainment of majority by the beginning of proceeedings, pretrial investigation is obligatory.

4. Explain to courts that cases on crimes of minors are considered jointly as a part of the judge and two jurymen, irrespective of achievement of eighteen-year age by day of legal proceedings (item 2 of the p. 3 of Art. 32 of the Code of Criminal Procedure).

5. For the purpose of strict observance of the regulations of the criminal procedure law regulating judicial proceedings on cases on crimes of minors, comprehensive and objective trial taking into account features of the identity of the minor person accused cases of this category are considered under the chairmanship of the judges having special preparation (Art. 430 of the Code of Criminal Procedure).

Such preparation provides need of advanced training not only on points of law, but also pedagogics, sociology, psychology.

6. In the presence of the bases for consideration of criminal case concerning the minor person accused in the closed judicial session the judge in case of purpose of legal proceedings specifies about it in the resolution with obligatory reasons for such decision.

If the question of consideration of criminal case concerning the minor person accused in the closed judicial session arose during legal proceedings, then the decision is made by court about what takes out motivated determination.

7. Draw the attention of courts that the criminal procedure law does not provide challenge for participation in legal proceedings of representatives of the commissions and inspectorates for cases of minors, and equally in representatives of teaching and educational organizations and labor collectives in which the minor studied or worked. Employees of these bodies, organizations and the organizations can be interrogated by court as witnesses if it is required for clarification of the facts of the case and data on the identity of the minor.

8. Courts should respect strictly the norms of the Criminal Procedure Code guaranteeing right of defense of the minor person accused. At the same time it must be kept in mind that participation of the defender (lawyer) on the case of juvenile offense is obligatory irrespective of whether the person accused of age of majority by day of legal proceedings reached. The same rule is applied and when person is accused of crimes, one of which was made aged up to eighteen years, and another - after attainment of majority.

The right of defense exercised according to the Art. of the Art. 41, of 43, of 44 Codes of Criminal Procedure provides possibility of participation as the defender in criminal procedure along with the lawyer of close relatives or legal representatives of the minor person accused. In sense of the p. 3 of Art. 44 of the Code of Criminal Procedure participation of the legal representative minor suspected (person accused) as the defender does not attract the termination of its powers as legal representative.

From the moment of the admission of the defender (lawyer) in proceeedings its participation is obligatory when carrying out investigative actions with the person accused. Non-compliance with these requirements in case of interrogation of the person accused, and also when carrying out with it other investigative actions according to Art. 105 of the Code of Criminal Procedure deprives of legal force the seized evidence which is recognized inadmissible and therefore they cannot be the basis for accusation, and also are used for proof of any circumstance specified in Art. 89 of the Code of Criminal Procedure.

Non-compliance by court with requirements of the law on obligatory participation of the defender (lawyer) for cases on crimes of minors is recognized according to item 4 of Art. 391 of the Code of Criminal Procedure fundamental breach of the criminal procedure law and attracts cancellation of conviction.

9. Courts shall fulfill strictly requirements of Art. 437 of the Code of Criminal Procedure that in judicial session on juvenile case of the person accused his legal representatives shall be called.

If the minor person accused has no parents and other legal representatives, then the court according to the p. 2 of Art. 56 of the Code of Criminal Procedure recognizes him as the legal representative guardianship and custody body.

About recognition of guardianship and custody body by the legal representative of the minor person accused and about the admission of the representative to participation in legal proceedings on criminal case the judge issues the motivated decree, and court - determination.

Parents (adoptive parents) deprived of the parent rights cannot be recognized as legal representatives of the minor person accused or person who made socially dangerous act; the guardians or custodians exempted by guardianship and custody bodies from accomplishment of the obligations; persons recognized as incapacitated; person to whom imputed charged by the act provided by the penal statute harm is done; person to whom harm is done by socially dangerous act.

If the specified obstacles arose after recognition of person by the legal representative of the minor person accused, the court resolves issue of the termination of participation of this person in legal proceedings and takes measures to replacement with his other legal representative.

10. Courts should mean that according to the p. 5 of Art. 56 of the Code of Criminal Procedure of power of the legal representative of the minor person accused in legal proceedings stop on reaching the last eighteen years.

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