Commentary on Article 144. Placement of a Minor Under Supervision of the Criminal Procedure Code of the Republic of Kazakhstan
1. The placement of a minor under the supervision of parents, guardians, trustees or other persons worthy of trust, as well as the administration of an organization performing functions for the protection of children's rights in accordance with the law, in which the minor resides, consists of the written undertaking by any of the persons specified above to ensure the minor's proper conduct and appearance when summoned by the authority conducting the criminal proceedings, including restricting the minor's presence outside the home and preventing the minor from travelling to other localities without the permission of the authority conducting the criminal proceedings.
2. The placement of a minor under the supervision of parents and other persons shall be permitted only upon their written application.
3. When obtaining a written undertaking to accept supervision, parents, guardians, trustees and representatives of the administrations of organizations performing functions for the protection of children's rights in accordance with the law shall be informed of the nature of the criminal offence of which the minor is suspected and of their liability in the event of failure to fulfil the obligations undertaken with regard to supervision.
4. In the event that the persons under whose supervision the minor has been placed fail to fulfil the undertaking they have assumed, a monetary penalty may be imposed on them in accordance with the procedure provided for in Article 160 of this Code.
The provisions of Article 144 of the CPC regulate a preventive measure applied exclusively to minors. As is well known, a citizen's capacity to acquire and exercise civil rights through their own actions, create civil obligations for themselves and fulfil them (civil legal capacity) arises in full upon reaching the age of majority, that is, upon attaining the age of eighteen (Article 17 of the Civil Code). Consequently, persons who have not reached this age are considered minors.
This preventive measure is educational and preventive in nature and excludes the isolation of a minor suspect or accused person from society. Taking these circumstances into account, the provisions of Part 1 of Article 144 of the CPC establish, in a certain sequence, the range of persons worthy of the trust of the authority conducting the criminal proceedings to whom a minor may be placed under supervision. This list is not exhaustive. Such persons may also include a grandfather, grandmother, close relatives, other relatives, etc. (Part 1 of Article 144 of the CPC).
The obligations imposed on parents and other persons (ensuring the minor's proper conduct and timely appearance when summoned by the authority conducting the criminal proceedings), as well as their liability for the minor's violation of the conditions for applying the preventive measure (imposition of a monetary penalty in accordance with Article 160 of the CPC), are similar to the procedure for applying personal surety. The only difference is that, as in the case of personal surety, the law does not regulate the exact number of persons under whose supervision a minor suspect or accused person may be placed. Furthermore, the application of this preventive measure does not require the minor's consent; only the expression of the will of the parents and other persons, as set out in their written application (petition), is required (Parts 1–4 of Article 144 of the CPC).
Among the obligations imposed on parents and other persons, the law specifies the restriction of minors' presence outside the home and the prohibition on their travelling to another locality without the permission of the authority conducting the criminal proceedings. Since these obligations are stipulated by law, they must in all cases be discussed with parents and other persons who undertake obligations within the framework of placing a minor suspect or accused person under supervision.
Parents. According to Article 47 of the Code “On Marriage (Matrimony) and Family” dated 26 December 2011, the origin of a child from the mother (maternity) is established by the registration authority on the basis of documents confirming that the child was born to the mother in a medical organization. If a child is born outside a medical organization, the child's origin is established by the registration authority on the basis of medical documents confirming the fact of birth, and, in the absence of such documents, the fact of the child's origin is established through judicial proceedings. The origin of a child from persons who are married (in a matrimonial relationship) to each other is confirmed by the marriage (matrimony) certificate of the parents. If a child is born by a surrogate mother, the child's origin is certified on the basis of the concluded surrogacy agreement, etc. Furthermore, Paragraph 1 of Article 87 of the aforementioned Code also includes persons who have adopted a child among the parents. Adoption is carried out by a court upon the application of the person or persons wishing to adopt a child.
Guardians, trustees, foster parents, and the administration of an organization performing functions for the protection of children's rights. According to Article 1 of the Law of the Republic of Kazakhstan dated 8 August 2002 “On the Rights of the Child in the Republic of Kazakhstan”:
organizations performing functions for the protection of children's rights are organizations providing social support, social and domestic, medical and social, social and pedagogical, psychological and pedagogical, and legal services, as well as material assistance, social rehabilitation of children in difficult life circumstances, and ensuring the employment of such children upon reaching working age (Paragraph 3); the legal representatives of a child are the parents, adoptive parents, guardian, trustee, foster parent and other persons replacing them who, in accordance with the legislation of the Republic of Kazakhstan, provide care, education and upbringing, and protection of the rights and interests of the child (Paragraph 6); trusteeship is a legal form of protection of the rights and legitimate interests of children aged fourteen to eighteen (Paragraph 9); guardianship is a legal form of protection of the rights and legitimate interests of children under the age of fourteen (Paragraph 10); foster care is a form of upbringing whereby a child left without parental care is transferred to a family of citizens for upbringing under an agreement concluded between the authorized state body and the person (foster parent) who has expressed a desire to take the child into their care (Paragraph 13).
The procedure for establishing guardianship and trusteeship, the legal status of guardians, trustees and persons under their care, orphans, children left without parental care and residing in educational, medical and other organizations, as well as the content of foster care, are regulated by the Code “On Marriage (Matrimony) and Family” (Chapters 16–18), the Law of the Republic of Kazakhstan “On the Rights of the Child in the Republic of Kazakhstan” (Articles 27–30) and other regulatory legal acts.
Coordination of activities and organization of interaction between state bodies and organizations in matters of guardianship and trusteeship over minors are carried out by the authorized body of the Republic of Kazakhstan in the field of child protection, while in relation to adults, such activities are carried out through the authorized social protection bodies. Local executive bodies of districts, cities of regional and republican significance, and the capital perform state functions relating to guardianship and trusteeship over minors through authorized education and healthcare bodies, and in relation to adults, through authorized social protection bodies (Paragraphs 5–6 of the Rules for the Implementation of State Functions in Matters of Guardianship and Trusteeship: Resolution of the Government of the Republic of Kazakhstan dated 30 March 2012 No. 382).
Guardianship or trusteeship in the form of foster care is established over minor orphans and children left without parental care, including those residing in educational, medical or other organizations. The basis for the establishment of foster care is an agreement on the transfer of a child to foster care, concluded between the person who has expressed a desire to take the child into their care and the body performing guardianship or trusteeship functions. The Regulations on Foster Care are approved by the authorized body of the Republic of Kazakhstan in the field of child protection (Order of the Minister of Education and Science of the Republic of Kazakhstan dated 16 January 2015 No. 14 “On Approval of the Regulations on Foster Care”, Articles 133–137 of the Code “On Marriage (Matrimony) and Family”).
The list of organizations performing functions for the protection of children's rights is established by Article 30 of the Law of the Republic of Kazakhstan “On the Rights of the Child in the Republic of Kazakhstan”: children's homes, specialized children's homes, special educational organizations, residential institutions, general-type boarding schools, residential institutions for children with intellectual disabilities, family-type children's villages, youth homes, juvenile adaptation centres, and assistance organizations established in accordance with the Law of the Republic of Kazakhstan dated 4 December 2009 “On the Prevention of Domestic Violence” (Article 15).
Commentary of 2020 on the Criminal Procedure Code of the Republic of Kazakhstan, by Marat Chekishevich Kogamov, Doctor of Law, Honorary Lawyer of Kazakhstan, Professor, Academician of the Kazakhstan National Academy of Natural Sciences, Honoured Employee of the Ministry of Internal Affairs of the Republic of Kazakhstan.
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