of September 15, 2000 No. 21
About court practice on cases on crimes of minors
Courts, considering cases on crimes of minors, generally provide the correct application of the laws.
At the same time, by hearing of cases of this category by courts requirements of regulations criminal and criminal procedure law are not always observed.
The due attention is not always paid to clarification of the reasons and conditions promoting making of crimes the measures provided by the law directed to their elimination are not taken.
In court practice cases of the wrong qualification of the criminal actions, superficial assessment collected in the matter of proofs non-compliance with the principles of individualization of punishment and appointment it without circumstances of the committed crime, age, marital status, the state of health, working capacity, conduct of life of the perpetrator take place.
In the presence of the bases for application of enforcement powers, stipulated in Article 87 Criminal codes, the question of release of minors from responsibility or the imposed penalty is not discussed.
For the purpose of ensuring rule of law, elimination of the available shortcomings, the correct application of regulations of substantive and procedural law by courts the Plenum of the Supreme Court of the Republic of Uzbekistan decides:
1. Pay attention that by hearing of cases about crimes of minors it is necessary to perform steadily the rules of practice provided by the law for this category of persons, based on concepts of justice and humanity, carefully and to research without prejudice collected in the matter of the proof, to give them proper assessment taking into account the identity of the guilty person and degree of public danger of the crime committed by it.
2. In case of purpose of cases on crimes of minors to legal proceedings it is necessary to check carefully justification of application of measure of restraint in the form of detention, having at the same time in type that such measure of restraint according to articles 242 and 243 Codes of Criminal Procedure and explanations stated in the resolution of the Plenum of the Supreme Court of November 14, 2007 "About application of measure of restraint by courts in the form of detention at stage of pre-judicial production" can be chosen as unique in these conditions when it is caused by degree of public danger of the committed crime and the identity of the defendant.
In case of the unreasonable conclusion of the minor into custody the court shall change measure of restraint without delay.
3. By hearing of cases about crimes of minors it must be kept in mind that participation of the lawyer on such cases is obligatory irrespective of whether the person accused reached age of majority by this time. This rule is applied 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.
According to requirements of Article 51 of the Code of penal procedure during preliminary inquiry and legal proceedings of cases on the crimes committed by minors, participation of the lawyer is obligatory. This rule is applied and in case of refusal the minor from protection based on article 52 Code of Criminal Procedure.
Non-compliance with requirements of the procedural law on obligatory participation of the lawyer for this category of cases according to articles 419 and 487 Codes of Criminal Procedure shall be considered as the fundamental breach of the criminal procedure law attracting cancellation of sentence.
The proofs collected without participation of the lawyer when its participation in legal proceedings is obligatory have no legal force.
4. According to Articles 551 and 562 of the Code of penal procedure the court informs on time and the place of hearing of cases about crimes of the minor parents, persons replacing them, representatives of guardianship and custody bodies, educational institutions, the companies, the organizations where the minor, the commissions on cases of minors, self-government institutions of citizens, and also, if necessary, representatives of other bodies studied or worked. The court has the right to cause and interrogate as witnesses of representatives of data of the organizations, the guardian or the custodian of the defendant, and also the representative of the commission on cases of minors.
In case of the solution of question of challenge in judicial session of the legal representative of the minor defendant it must be kept in mind that the list of persons containing in part 2 of article 60 Code of Criminal Procedure who can be legal representatives is exhaustive.
If the minor has no parents and he lives one or with person who is not recognized in accordance with the established procedure as his guardian or the custodian, the court needs to cause as the legal representative of the defendant of the representative of guardianship and custody body.
5. Courts should mean that according to article 548 Code of Criminal Procedure establishment of age and the identity of the minor is among the circumstances which are subject to proof for minors. At the same time it is necessary to consider that person is considered reached age from which there comes criminal liability, not at birthday, and after days on which this day, i.e. from zero hours of the next days falls.
It is necessary to pay attention to availability in case papers of photocopy of the certificate of birth or the passport of the defendant. In the absence of the specified documents this defect shall be eliminated during legal proceedings.
In case of establishment forensic medical examination of age of the defendant in the afternoon of its birth the last day of that year which is designated by experts is considered, 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 assumed by experts.
6. If the minor in the development considerably lags behind the age and is not fully aware of value of the crime committed by it, the court according to part 3 of article 87 UK shall discuss question of feasibility of application to it enforcement powers instead of criminal sentencing.
Explain to courts about need of broader application of measures of forced nature, the provided articles 88 UK, to the minors who committed for the first time crimes, not constituting big public danger, and also less serious crimes or for repeated, making of the crimes which are not constituting big public danger.
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