Court/Judicial body: Supreme Court of the Kyrgyz Republic
Date: 2 April 2003 CRC
Provisions: General reference (no specific provision cited)
Other international provisions:Standard Minimum Rules for the Administration of Juvenile Justice (“Beijing Rules”), 1985.
Domestic provisions: Criminal Procedure Code of the Kyrgyz Republic Criminal Code of the Kyrgyz Republic Law of the Kyrgyz Republic “On protection of minors” Civil Code of the Kyrgyz Republic Code on Administrative Violations of the Kyrgyz Republic
Case summary
Background: This resolution was prepared by the Plenum of the Supreme Court by virtue of the authority conferred on it by Article 15 of the law “On the Supreme Court of the Kyrgyz Republic and local courts”. According to Article 15, the Supreme Court prepares summaries of judicial practice and provides binding recommendations to the lower courts on issues of judicial practice. In this case, the Court considered judicial practice in criminal proceedings concerning minors which resulted in the excessive imposition of prison sentences on children who had committed minor offences.
Issue and resolution: Juvenile justice. The Court issued binding recommendations to lower courts relating to the sentencing of minors who committed minor criminal offences.
Court reasoning: After reviewing the judicial practice of the lower courts, the Supreme Court made the following observations and recommendations: When considering criminal cases concerning minors, the courts shall take into account, alongside national legislation, relevant provisions of the CRC as well as the Beijing Rules. Legal proceedings concerning minors should as much as possible promote and protect the rights of the child. Any measures applied to juvenile offenders shall always be in proportion to the characteristics of the child and the circumstances of the offence. Custody should only be used as a measure of last resort and for the shortest time possible. Courts shall consider alternative measures such as placing the minor in a special educational or medical-educational institution and first-time offenders should not be given sentences of imprisonment. The participation of defence counsel and a legal representative for the child is compulsory from the moment the child is detained. If the minor has no parents or guardians, the court shall appoint a representative of the guardianship authority. The court should also ensure that interested parties such as the child’s school, employer or other persons and organisations are notified of the proceedings and provided with the opportunity to testify about the child’s circumstances. The right to be notified of the charges, the right to remain silent, the right to counsel, the right to confront witnesses and to cross-examination and the right to appeal to a higher authority shall be guaranteed at all stages of proceedings. It is necessary to find out the exact circumstances in which the offence was committed and whether or not the minor who committed the offence had adult instigators or accomplices, keeping in mind that physical or mental coercion are circumstances mitigating the severity of punishment. Judges should receive ongoing training on the proper handling of cases concerning children in conflict with the law and courts should also systematically examine, analyse and produce summaries of cases involving minors.
Excerpt citing CRC and other relevant human rights In Russian: “При рассмотрении дел о преступлениях несовершеннолетних судам необходимо руководствоваться: Конвенцией “О правах ребенка”, Минимальными стандартными правилами Организации Объединенных Наций, касающиеся отправления правосудия в отношении несовершеннолетних (“Пекинские правила”), Законом Кыргызской Республики “Об охране и защите прав несовершеннолетних” от 22.11.99 г. и другими нормативными правовыми актами, касающиеся прав и свобод несовершеннолетних”.
As translated by CRIN: “When considering cases of offences committed by juveniles courts must be guided by the Convention on the Rights of the Child, Standard Minimum Rules for the Administration of Juvenile Justice (“the Beijing Rules”), the Law of the Kyrgyz Republic “On protection of minors” of 22 November 1999 and other regulations relating to the rights and freedoms of minors”.
CRIN comments: CRIN believes this decision is consistent with the CRC in so far as it clarifies some aspects of the right of children in conflict in the law to treatment which promotes their rights under Article 40.
Citation: Постановление пленума Верховного суда Кыргызской Республики от 2 апреля 2003 года N6 “О судебной практике по делам о преступлениях несовершеннолетних”