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RESOLUTION OF THE PLENUM OF THE SUPREME COURT OF THE KYRGYZ REPUBLIC

of April 2, 2003 No. 6

About court practice on cases on crimes of minors

Having discussed practice of application by courts of the republic of the legislation on cases on crimes of minors, the Plenum of the Supreme Court of the Kyrgyz Republic notes that courts, generally correctly apply the legislation on this category of cases. At the same time, in case of legal proceedings on cases on crimes of minors cases of violation of the penal and criminal procedure legislation are still allowed. Courts insufficiently full and comprehensively research the facts of the case, do not pay due attention to clarification of motives of crime execution, the reasons and conditions promoting it, not always with sufficient completeness establish all participants of criminal group, role and extent of participation in crime of each of them.

The minors who committed the crimes which are not constituting big public danger are sometimes condemned to imprisonment whereas their correction and re-education could be reached without isolation from society. There are cases of appointment of criminal penalty as courts by the minor who committed minor offenses.

Courts by hearing of cases of this category do not pay attention to observance of the rights of the child affirmed by the international standards.

Due to the questions arising at courts in case of application of the legislation on cases on crimes of minors, the Plenum of the Supreme Court of the Kyrgyz Republic

DECIDES:

1. Draw the attention of courts to need of timely and high-quality hearing of cases about crimes of minors. Legal proceedings for this category shall be based on strict observance of requirements of special regulations of the material and procedural legislation, as much as possible promote ensuring interests, protection of legitimate rights of minors, to purpose of just punishment, the prevention of making of new crimes.

For this purpose:

- it is necessary to enhance constantly professional competence of the judges considering cases on crimes of minors, to increase their personal liability for legality and justification of each judgment;

- recommend hearing of cases of this category by chairmen of the courts.

By hearing of cases about crimes of minors courts need to be guided: The convention "About the Child's Rights", United Nations standard minimum rules concerning administration of law concerning minors ("The Beijing rules"), the Law of the Kyrgyz Republic "About protection and protection of the rights of minors" of 22.11.99 and other regulatory legal acts concerning the rights and freedoms of minors.

2. On each arrived case on crimes of minors courts should check carefully justification of arrest (detention) of the minor, meaning that according to Art. 393 of the Code of Criminal Procedure of the Kyrgyz Republic such measure of restraint can be chosen only in exceptional cases as unique in these conditions when it is caused by weight of the committed crime or not momentariness of its making in the presence of the bases specified in the station of the Art. 102, of 103, of 110, of 114 Codes of Criminal Procedure of the Kyrgyz Republic.

In case of non-compliance by investigation authorities with these requirements and frivolous arrest (detention) of the minor the court should change or cancel this measure of restraint.

Proceeding from the specific facts of the case and weight of crime, taking into account data on the identity of the minor, and also conditions of his life and life, the relations with parents the court based on Art. 108 of the Code of Criminal Procedure of the Kyrgyz Republic can apply as measure of restraint its transfer under supervision of parents, guardians, custodians or other credible persons, and also representatives of special child care facilities, and the closed child care facilities which are brought up in - under supervision of administration of these organizations.

3. Courts should mean that according to item 4 of the Art. 40, item 1 of Art. 43 and item 4 of Art. 46 of the Code of Criminal Procedure of the Kyrgyz Republic in case of investigation participation of the defender (lawyer) and legal representative of the minor surely from the moment of the actual detention, and in case of legal proceedings - irrespective of whether the defendant reached age of majority by this time. This rule belongs also to 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. Participation of the teacher or psychologist in case of interrogation of the minors of the suspect, person accused, defendant which did not reach sixteen-year age, and also reached this age on recognized mentally retarded is also obligatory (Art. 396 of the Code of Criminal Procedure of the Kyrgyz Republic).

It must be kept in mind that the right of defense exercised according to Art. 20 of the Code of Criminal Procedure of the Kyrgyz Republic provides possibility of participation in consideration of the case in court along with the defender (lawyer) of close relatives or other legal representatives of the minor (Art. 398 of the Code of Criminal Procedure of the Kyrgyz Republic).

According to Art. 7 of item 7.1 of the Minimum standard rules of the UN, the concerning administrations of law concerning minors ("The Beijing rules") the basic procedural guarantees, such as presumption of innocence, the right to be informed of the brought charge, the right to refusal to give evidences, the right to have the lawyer, the right to presence of parents or the guardian, the right to confrontation with witnesses both their cross-examination and the right to the appeal in higher instance shall be guaranteed at all stages of legal proceedings.

Non-compliance with requirements of the law on obligatory participation of the defender (lawyer), the teacher or the psychologist for minors on pretrial investigation and in judicial session shall be considered owing to Art. 349 of the Code of Criminal Procedure of the Kyrgyz Republic as the fundamental breach of the criminal procedure law attracting cancellation of sentence.

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